Librarians, Publishers, Bookstores Join Lawsuit Over Arkansas Library ‘Obscenity’ Law

From Publisher’s Weekly:

Some 17 plaintiffs—including the ALA’s Freedom to Read Foundation, the Association of American Publishers, the American Booksellers Association, and the Authors Guild—will file a federal lawsuit over a recently passed law in Arkansas, Act 372 of 2023 (also known as SB 81), which exposes librarians to criminal liability for making allegedly “obscene” books available to minors.

According to a report in the Arkansas Advocate, news of the suit comes after the Central Arkansas Library System board of directors voted on May 25 to proceed with the litigation. At press time, the suit had yet to be filed.

In a statement to PW, ALA officials confirmed their participation in the suit. “The American Library Association is pleased that the Freedom to Read Foundation, our First Amendment legal defense arm, and our state affiliate, the Arkansas Library Association, are participating in the lawsuit to vindicate Arkansas residents’ freedom to read,” ALA president Lessa Kanani’opua Pelayo-Lozada told PW. “The government has no place in deciding what books people can borrow or buy.”

The law in question, which was signed by governor Sarah Huckabee Sanders on March 31 and is set to take effect on August 1, removes an exemption from prosecution for school and public libraries and would empower virtually anyone to challenge the appropriateness of library materials in Arkansas. Library staff found to have “knowingly” distributed or facilitating the distribution of allegedly obscene material to a minor—defined as anyone under 18—would be open to a potential felony charge.

The impending lawsuit in Arkansas is the latest in an escalating legal offensive being waged by freedom to read advocates in response to the ongoing surge in book bans and legislative restrictions nationwide.

Link to the rest at Publisher’s Weekly

Legally Literary: A Reading List of Lawyers (or Law Students) Turned Writers

From The Literary Hub:

Over the past two decades, I’ve worked on fiction between the spaces of my various law related jobs. Law firm associate. Federal judicial clerk. Law professor (which, happily, I still am). My debut novel, Late Bloomers, was recently released by Random House, and I found myself thinking about the lawyers-turned-writers that have inspired me over the years.

During the many years I worked on my own novel, dreaming of publication, I’d always notice if an author mentioned a J.D. degree in their bio, filing it away as inspiration. I’d feel a tiny jolt and think that maybe I, too, could someday join this club of lawyers (or former law students) who had published a book of fiction.

Now that my debut novel has been published, I’m often asked about my law background and why law-trained people are drawn to (and sometimes, quite good at) writing fiction. As I’m not inclined to make generalizations without supporting data (the academic life beats that trait out of you), I can only offer unsupported guesses. And here are a few.

Writers and lawyers pay careful attention to language. If you are a lawyer who drafts contracts, one wrong word or unartful phrase can have real consequences. Fiction writers, too, think hard about the words they choose. If you are a lawyer litigating cases, you likely write briefs and write them in ways designed to generate empathy for your client. Fiction writers, too, are in the empathy business. To empathize with another person, in circumstances different than one’s own, is why many of us write and read fiction.

Also, lawyers are in the constant company of hypotheticals: what if the facts of a case changed this way or that, what outcome then? In law school, professors pepper their students with hypotheticals (sometimes bordering on the bizarre). As a novelist, I’m engaged in a years-long hypothetical exercise; what if my characters did this or that, what then? And then, of course, there is this: The best legal writing can shine a light on inequity and remind us of our shared humanity. Great fiction often does that too.

. . . .

Again, these are just some guesses for why lawyers are drawn to writing fiction. But as I look back on the authors whose work has inspired me over the years, it is hard not to be struck by how many of them were lawyers for a time—or, at least, went to law school, even if they didn’t practice law. Here are nine novels and short story collections by former lawyers or law students that have inspired me along the way.

Elizabeth Strout received a J.D. from Syracuse University College of Law and worked briefly as a legal services lawyer. In a Fresh Air interview with Terry Gross, Strout described herself as a “bad lawyer” (I don’t believe that) but said that her law school training was nonetheless beneficial to her writing because “it stripped away the excessive emotion.”

Strout is one of my favorite writers, and I love all her story collections and novels, including her most recent, Lucy by the Sea. But Olive Kitteridge has a special place in my heart, and I re-read it often. Winner of the 2009 Pulitzer Prize, Olive Kitteridge is a deeply insightful and moving collection of thirteen linked stories that follow Olive, a retired schoolteacher, and other residents of Crosby, Maine, as they grapple with love, loss, loneliness, marriage, parenting, and familial estrangement.

Min Jin Lee’s first novel, Free Food for Millionaires, introduces the unforgettable character of Casey Han, a Princeton-educated Korean-American woman raised in Queens, who struggles with debt, loneliness, heartache, ambition, and parental expectations in her post-grad twenties.

Lee studied law at Georgetown and worked as a corporate lawyer in New York for a few years before leaving to focus on her writing. In numerous interviews, she has described the grueling billable hours of her law firm job and the health concerns that drove her to quit. Despite having experienced the unrealistic demands of New York law firm life firsthand, I’m almost grateful for its unpleasantness—if for no other reason than it prompted Lee to devote herself to writing her incredible novels and sharing her astonishing talent with the world.

After graduating from Duke Law School, Ben Fountain practiced real-estate law at a large Dallas law firm for five years before deciding to pursue fiction writing full-time. Fountain discusses his law background in a New Yorker article by Malcolm Gladwell titled “Late Bloomers” (not the reason I picked my own novel’s title, I promise). In it, Fountain describes the challenges of writing fiction at night after working law firm hours and the eighteen long years that passed between his decision to quit law and the publication of his first book, Brief Encounters with Che Guevara, which won the Pen/Hemingway Award.

The stories in this terrific collection, set in locations as varied as Haiti, Columbia, Myanmar and Sierra Leone, are heartbreaking, surprising, complex, and darkly funny.

Link to the rest at The Literary Hub

Supreme Court Rules Against Warhol Estate in Copyright Dispute Over Use of Photo of Prince for Magazine Cover — Potentially Wide-Reaching Implications for Generative AI for Visual Art

From The National Law Review:

On May 18, 2023, the US Supreme Court affirmed the Second Circuit’s decision that artist Andy Warhol’s silkscreen portrait of Lynn Goldsmith’s photograph of musician Prince, used for a Vanity Fair cover, was not a fair use under US Copyright Law.

In a 7-2 decision, the Court found the “purpose and character” factor of the copyright fair use analysis did not weigh in favor of a finding of fair use where the use of a new work encompassing an original work shares the same purpose as the use of the original work and is commercially licensed.

Although the addition of a new meaning or message is a relevant consideration in assessing the purpose and use of a work for purposes of determining fair use, it is not dispositive. According to the Court, the “purpose and character” fair use factor must consider “the reasons for, and nature of, the copier’s use of an original work,” balanced against the original creator’s exclusive right to make derivative works. If the new work achieves the same or similar purpose to the original work, and the new use is of a commercial nature, the first fair use factor likely weighs against a finding of fair use, absent another justification of copying. Ultimately, the inquiry is objective and questions how the original user has used the original work.

The case comes with much anticipation and could have significant implications on the availability of the “fair use” defense in copyright infringement cases, including potentially with respect to the hotly contested use of generative artificial intelligence to create new works.

Background

Vanity Fair magazine originally commissioned Warhol to create an image of Prince for publication alongside an article of the musician in 1984. Photographer Lynn Goldsmith granted the magazine a “one time” license for it to use one of her Prince photographs as an “artist reference for an illustration.” Warhol created a purple silkscreen portrait using Goldsmith’s photograph. The magazine credited Goldsmith for the “source photograph” and paid her $400.

Unbeknownst to Goldsmith, Warhol created 15 other silkscreen prints and pencil drawings from Goldsmith’s same image of Prince. Goldsmith claimed she did not learn of the Prince series until 2016, when Condé Nast published some of the images in a posthumous tribute to Prince. In particular, in 2016, the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed an “Orange Prince” silkscreen image to the magazine for $10,000 for its cover. Goldsmith did not receive any compensation or credit.

(PG note. Both images are from the Opinion of The Supreme Court.)

In response to Goldsmith’s objections, AWF sued for a declaratory judgment of non-infringement of Goldsmith’s alleged copyright. Goldsmith counterclaimed for infringement. On Goldsmith’s counterclaim, the district court granted summary judgment for AWF, finding all four copyright fair use factors, under 17 U.S.C. §107, weighed in the foundation’s favor. The Court of Appeals for the Second Circuit however reversed and remanded, finding all fair use factors favored Goldsmith.

Decision

The only issue before the Supreme Court was whether the “purpose and character of the use” weighed in favor of AWF such that its commercial licensing to Condé Nast would be considered fair use. The Court ultimately agreed with the Second Circuit, finding in favor of Goldsmith, and that the factor did not favor AWF’s fair use defense to copyright infringement.

Goldsmith had licensed her works for years, with images appearing in LifeTime, and Rolling Stone magazines. People magazine had also paid Goldsmith to use one of her Prince images in a special collector’s edition of its publication following Prince’s death. Because Goldsmith’s original photograph and AWF’s work licensed to Condé Nast were both portraits of Prince, “used in magazines to illustrate stories about Prince[,]” the Court found the works had the same purpose and that AWF’s use did not favor a finding of fair use.

A determination of fair use requires consideration of the following four factors set forth in §107 of the Copyright Act:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

The Court explained that the central question in determining the first fair use factor asks whether and to what extent the new use adds something new, with a further purpose or different character. The larger the work supersedes the objects of the original creation and goes beyond that required to qualify as a derivative work, the more likely the purpose and use factor will weigh in favor of a finding of fair use. Works that merely supersede the objects in the original creation — without adding something new, with a different character or further purpose — are unlikely to be found transformative and thus fair.

Included in the Court’s fair use analysis was significant discussion of its 1994 Campbell decision, a case involving 2 Live Crew’s copying of Roy Orbison’s song, “Oh, Pretty Woman,” and from which it created a rap derivative, “Pretty Woman.” There, the Court found the new work clearly transformative in that it was a parody, had a different message and aesthetic, and had the distinct purpose of commenting on the original.

Conversely, Warhol’s image was substantially the same as Goldsmith’s original photograph in that both were used to illustrate a portrait of Prince, AWF received compensation for doing so, and the degree of difference (i.e., the flattening, tracing, and coloring of the photo) was not enough for the first factor to favor AWF, according to the Court.

The Court compared AWF to other would-be users who may attempt to seek the shelter of the fair use defense, including musicians who sample songs, playwrights who adapt novels, and filmmakers who create spinoffs, noting that a finding of fair use in the case might authorize a range of commercial copying for use in a substantially same manner as the original work.

Link to the rest at The National Law Review

PG would have come down on the fair use side of the argument, but nobody ever nominated him to serve on the US Supreme Court.

2 Supreme Court justices failed to recuse themselves from cases involving their publisher after receiving large amounts in book advances and royalties

From Business Insider:

Two Supreme Court justices did not recuse themselves from cases that arose before the court involving their book publisher, Penguin Random House, according to a recent CNN report.

There have been two cases that came before the Supreme Court involving publishing conglomerate Penguin Random House. In both situations, the Supreme Court declined to take on the copyright infringement cases, allowing the publisher to win at a lower court level.

Liberal Supreme Court Justice Sonia Sotomayor, who was confirmed in 2009, was on the high court during both cases, which occurred in 2013 and 2019-2020. Conservative Justice Neil Gorsuch was confirmed in 2017 and was also a member of the Supreme Court during the second case. 

Sotomayor and Gorsuch had both signed major book deals with the publisher before the cases occurred, and both justices declined to recuse themselves from the cases involving Penguin Random House. Former Justice Stephen Breyer, who had reported receiving royalties from the publisher, recused himself from each of the cases.

According to Sotomayor’s financial disclosures, as CNN reported, she’s made approximately $3.6 million in royalties and advances for the several books she’s published under Knopf Doubleday Publishing Group, which is part of Penguin Random House.

As for Gorsuch, his financial disclosures note he’s made at least $655,000 from Penguin Random House over the past few years from his book, “A Republic, If You Can Keep It.”

. . . .

“The Supreme Court should have a code of ethics to govern the conduct of its members, and its refusal to adopt such standards has contributed to eroding public confidence in the highest court in the land,” Van Hollen said. “It is unacceptable that the Supreme Court has exempted itself from the accountability that applies to all other members of our federal courts, and I believe Congress should act to remedy this problem.”

Link to the rest at Business Insider

PG suggests this is not a gray area. Justices who have received large payments for their books should absolutely recuse themselves in cases that might impact the finances of their publishers.

While PG may not agree with Senator Chris Van Hollen on some issues, but he firmly supports actions that will require recusal of justices who have received financial benefits of more than a trivial amount from a person or entity who has a matter before the Supreme Court.

For those unfamiliar with US appellate court practices, when a member of the Supreme Court recuses her/himself from a particular case, the Chief Justice or, if the Chief Justice has recused from a matter, the senior justice on the Court appoints another federal judge, typically a judge from one of the thirteen Circuit Courts of Appeal who have been appointed in the same manner as the members of the Supreme Court have been.

In PG’s opinion, some of the Circuit Court judges are more competent at their profession than some of the Supreme Court justices are.

UK’s Competition and Markets Authority Launches Review into AI Foundation Models

From Inside Privacy – Covington:

On 4 May 2023, the UK Competition and Markets Authority (“CMA”) announced it is launching a review into AI foundation models and their potential implications for the UK competition and consumer protection regime. The CMA’s review is part of the UK’s wider approach to AI regulation which will require existing regulators to take responsibility for promoting and overseeing responsible AI within their sectors . . . . The UK Information Commissioner’s Office (“ICO”) has also recently published guidance for businesses on best practices for data protection-compliant AI.

The CMA’s focus is on foundation models – a type of AI model trained on large amounts of data that can be adapted to a wide range of different tasks and services such as chatbots and image generators – and how their use could evolve in the future. The review will focus on three main themes:

  • Competition and barriers to entry in the development of foundation models;
  • The impact foundation models may have on competition in other markets; and
  • Potential risks to consumers arising from the use of foundation models in products and services.

As part of its evidence gathering efforts, the CMA will issue “short information requests” to key players including “industry labs developing foundation models, developers… leading technology firms” and others 

Link to the rest at Inside Privacy – Covington

“Covington” in the source refers to Covington & Burling, an extremely large world-wide law firm, founded in 1913 in Washington, DC., by the two original partners. Covington grew to 100 attorneys by 1960, more than 200 attorneys by 1980. Today, Covington & Burling has more than 1,300 attorneys plus many, many more paralegals, assistants and inside experts in 13 offices, including places like Dubai, Johannesburg and Frankfurt.

One of the more recently-created practice areas focuses on legal issues related to artificial intelligence and robotics. It’s managed by three senior partners located in Washington, New York and Frankfurt. In a couple of weeks, the Artificial Intelligence and Robots group will host its 2023 Robotics Forum which will include presentations on subjects like Regulation of Data in Machine Learning and AI.

Per the OP, lots of non-technical law makers are trying to understand AI and, PG suspects, have no idea how they will or can regulate it in one way or another. Since a great deal of AI can be reached and used via the internet and, PG suspects, that AI can or will soon be able to live in distributed computing environments linked by high speed data connections, the question of what government or collection of governments has the ability to regulate AI usage will be a real hairball. PG suspects Covington and similarly large international law firms want to be exceedingly involved in those sorts of questions.

Self-published authors earn more than traditionally published counterparts, according to ALLi report

From The Bookseller:

New research by the Alliance of Independent Authors (ALLi) claims authors who self-publish currently earn more than traditionally published authors.

ALLi circulated the survey to its members and subscribers, as well as “through other key self-publishing and author organisations” in February 2023. It was answered by more than 2,000 respondents – 60% of whom were in North America, with 21% from the UK and 8% respectively for Australia/New Zealand, and Europe. It found the the median revenue for independent authors in 2022 stands at $12,749 (£10,229).

This compares to the findings of a report into authors’ earnings commissioned by The Authors’ Licensing & Collecting Society (ALCS) and published in December 2022, which showed that median earnings from writing alone for authors with third-party publishers stands at approximately $8,600 (£7,000).

The ALCS’ report showed “a sustained fall in professional writers’ real terms income from writing over the past 15 years of around 60%, pushing median earnings down to minimum wage levels,” a trend which ALLi suggests self-published authors are “bucking” in light of its survey’s findings, which suggest average incomes of self-published authors are rising, with a 53% increase in 2022 over the previous year.

By contrast, its report goes on, “previous author income surveys, which have focused on revenues received by authors with third-party publishers, have repeatedly reported falling incomes.”

. . . .

ALLi has commissioned the UK Copyright & Creative Economy Centre, CREATe – which conducted the ALCS’ survey – to expand analysis of the findings, particularly in relation to “key demographic groups and factors that contribute to higher incomes.” ALLi will publish the full report including demographic data in June 2023, together with a collection of insights from several peer self-publishing organisations, as the Big Indie Author Data Drop. This compilation and final 2023 report will be presented at the Self-Publishing Live conference in London in June 2023 and will repeat as an annual event, which the organisation says will fill “a notable gap in author income research”.

Orna Ross, ALLi director, said of the findings: “ALLi has always believed that authors are financially better off self-publishing. Now that the results of this survey confirm that belief, we want to make sure all authors know that they can make a living as an author, if they do the work and acquire good publishing skills, alongside good writing skills. And that they are not alone. There is full support for talented and dedicated authors at ALLi and throughout the self-publishing community.”

Link to the rest at The Bookseller

PG notes that Orna Ross, the founder of The Alliance of Independent Authors, has been doing good things for indie authors for a long time (ALLI was founded in 2012).

Those who recall 2012 (including PG, just barely), will remember that this year included a notable antitrust suit filed by the U.S. Justice Department against Apple, Hachette, HarperCollins, Macmillan Publishers, Penguin, and Simon & Schuster for trying to fix prices for ebooks, and strangle Amazon’s ebook business in the crib.

Basically the five big publishers agreed to refuse to sell ebooks to Amazon unless Amazon sold their ebooks at the publisher’s list price. The agreement was made at the instigation of a top Apple exec and provided that Apple would sell the majority of e-books between $9.99 and $14.99, with new releases being $12.99 to $14.99.

Apple also adopted the agency model which it used in its App Store for distribution of e-books. This let Publishers control the price of the e-books with Apple receiving a 30% commission. The joint agreement provided that the Publishers would establish ebook prices on Amazon so ebook prices on both platforms would be identical.

On the day Apple launched its ebook store, a Wall Street Journal reporter asked Jobs why people would pay $14.99 for a book in the iBookstore when they could purchase it for $9.99 from Amazon. In response Jobs stated that “The price will be the same… Publishers are actually withholding their books from Amazon because they are not happy.”

As PG has opined on more than one previous occasion, doing this reflected the rank business and legal stupidity of the major publishers. What Jobs and the publishers agreed to do was a classic example of illegal price-fixing that was (and still is) clearly prohibited by US antitrust laws.

Jobs was a highly magnetic and innovative individual who built Apple from nothing into a major world-wide computer brand, a wonderful American business success story.

However, Jobs was dying of cancer at the time, kept this information secret and (PG suspects) decided to propose this agreement without any input from Apple’s lawyers at all. A law student who had taken a single antitrust class would have recognized this was prohibited conduct.

After being sued, the publishers quickly caved, took their financial licks from the Justice Department and some state attorneys general who joined in the suit, and went back to business as usual. Apple lost at the trial level, lost at the United States Court of Appeals. The US Supreme Court declined to take the case.

Amazon kept pushing ebooks, including more generous royalty terms than authors could get from traditional publishing, and never looked back. PG has suggested on numerous occasions that traditional publishers missed a wonderful opportunity to earn a lot of money from ebooks because they didn’t want to harm their printed book sales or relationship with traditional bookstores.

It was a classic example of one bad decision after another.

Orna Ross and ALLI have provided a lot of help for indie authors ever since the Apple antitrust case was still roaring along, so she’s seen the thick and thin of indie authors. You may want to check out the membership benefits the organization offers.

Texas County to Consider Shutting Down Library After Book Ban Ruling

From Publisher’s Weekly:

After a federal judge ordered the return of more than a dozen books improperly pulled from the Llano County Public Library shelves for their content, the county’s commissioners have called a special meeting for April 13 to discuss shutting the library down altogether.

According to a notice and agenda posted to the Llano County website, the Llano County Commissioners Court has set a meeting to discuss whether to “continue or cease operations of the current physical Llano County Library System,” the continued employment of library staff, and the “feasibility of the use of the library premises by the public.”

A tweet from the American Library Association’s Unite Against Book Bans account shared news of the meeting, and urged local library supporters to contact their local officials to support the library and to show up to the special meeting to advocate for their library. ALA officials say Unite Against Book Bans and ALA will continue to work closely with the Texas Library Association to support “at-risk library workers” in Llano County, as well as with Texans for the Right to Read and other Texas activists “who are on the front lines of the fight to protect every person’s right to read in Llano County and across the state of Texas.”

Closing the library would be an extreme reaction, notes ALA’s Deborah Caldwell-Stone, director of the American Library Association’s Office for Intellectual Freedom.

“Rather than return twelve books to the library’s collection that reflect the lives and experiences of LGTQIA+ and BIPOC persons, the members of the Llano County Commission and its Library Board are prepared to fire the dedicated staff of the Llano County Library System and deny Llano County residents access to all the information and community services that the library staff provides,” Caldwell-Stone said, “simply to prevent anyone from reading certain books that these officials don’t ever have to read.”

The new developments come after a federal judge found that the library board in Llano County likely infringed the constitutional rights of readers in the community by unilaterally removing books it deemed inappropriate. In a 26-page decision, judge Robert Pitman affirmed that “the First Amendment prohibits the removal of books from libraries based on either viewpoint or content discrimination,” and found that the evidence presented in the case showed that county officials illegally “targeted and removed books, including well-regarded, prize-winning books, based on complaints that the books were inappropriate.”

Link to the rest at Publisher’s Weekly

PG did a little research and determined that Llano, Texas, is a small rural town – about 3500 people – that is located about 65-70 miles from the state capital, Austin.

When PG says small town, Llano has what appears to be a struggling newspaper that includes stories and photos of the local high school athletic teams and contestants for the annual Rodeo Queen contest. The town is surrounded by ranches raising livestock and and doing crop farming.

The population of Llano is about 80% white, including descendants of early German settlers, 15-17% Latino – mostly Mexican – with a sprinkling of a few other races.

PG expects that the library lawsuit was probably the biggest thing Llano (and Llano County) had experienced in a very long time. He doesn’t know if the county paid for its legal representation in the lawsuit or if some or all of its litigation expenses were covered by some type of insurance.

The honor of serving on the King’s Island Library Board sounds like a post that doesn’t attract very many candidates. While a federal lawsuit was certainly a source of a lot of publicity, PG suspects that the members of the County Library Board found that dealing with out of town reporters who regarded them as hicks from the sticks and spending time talking with the Library Board’s attorney during the runup to the trial was not what they had in mind when they decided it was their civic duty to support the local library.

PG found an article from TheDailyTrib.com (covering the news from Marble Falls, Burnet, Kingsland, Llano, Spicewood, Horseshoe Bay, and ALL of the Highland Lakes) that described what appears to be the current situation:

Closing the three libraries in the Llano County Library System will not affect the Little v. Llano County lawsuit, which will move forward, according to an attorney for the plaintiffs. Also, Llano County Precinct 4 Commissioner Jerry Don Moss and Library Advisory Board Vice-chairman Bonnie Wallace still will have to appear before the court as ordered by a U.S. District judge on April 27 or face possible sanctions.

“We will continue to see a permanent injunction against censoring books in case they ever reopen the library,” said Katherine Chiarello of Wittliff Cutter law firm in Austin, when asked about what would happen if the libraries were closed. 

Llano County commissioners are meeting at 3 p.m. Thursday, April 13, to discuss that possibility. According to the agenda, they will meet in executive session to also discuss “action regarding the continued employment and/or status of the Llano County Library System employees and the feasibility of the use of the library premises by the public.”

The county’s four commissioners and County Judge Ron Cunningham are holding the special meeting in response to an order enjoining the county to return 17 books to library shelves and the digital catalog system. The books were back in circulation on March 31. 

In a different ruling, U.S. District Judge Robert Pitman of the U.S. District Court for the Western District of Texas, Austin Division, ordered Moss and Wallace to appear in person at 10 a.m. April 27. The two did not appear for depositions on March 22 and 27, respectively. They could face sanctions that would include contempt of court charges, rendering a default judgment against the disobedient parties, or paying expenses accrued, including attorney fees, for missing the scheduled appointments. 

The U.S. District Court does not have a say in whether the libraries should remain open, but people supporting the libraries can have an impact, according to Chiarello.

“The citizens of Llano can make themselves heard,” she said. “It is un-American, it is against the rule of law, and it is not good for the people of Llano County to be deprived of the many services the library offers to the community.” 

People on both sides of the issue plan to show up in force at the meeting, which is being held in the Justice of the Peace Precinct 4 courtroom, 2001 Texas 16 North in Llano. The small room holds about 40 people and is often crowded, even when a meeting is not controversial. 

“I am aware that several people are very upset by this,” said Leila Green Little, one of seven plaintiffs in the case. “I think there will be a big turnout.” 

Buchanan Dam resident Wayne Shipley is also upset over the issue, but for different reasons. He plans to be there and hopes to speak during public comment. He, too expects a big crowd to overflow the small courtroom. 

“I was taken by surprise that the county is having to look at this step,” he told DailyTrib.com. “Seems to me this issue is being forced by the plaintiffs. It’s not about banning books. The books in question are explicitly pornographic in nature. They should not be available for children to pick up off the shelves.” 

Shipley did agree that not all 17 books listed fit in that category, including one about the Ku Klux Klan, another about the caste system, and a children’s series about farting animals and imaginary figures.

“Those aren’t the ones driving the issue,” he said. “I think those are put in there to blur the issue.” 

PG is sympathetic with residents of Llano who get upset by being ordered by a Federal District Judge to show up in court in Austin to be potentially held in contempt of court and/or ordered to pay attorneys fees to a relatively large law firm (17 attorneys) in Austin. PG’s quick and dirty research into the fees charged by Austin attorneys leads him to believe that they’ll be about $300 per hour.

The quote from one of the attorneys on the winning side was, in PG’s personal legal judgement, really stupid:

“We will continue to see a permanent injunction against censoring books in case they ever reopen the library,” said Katherine Chiarello of Wittliff Cutter law firm in Austin, when asked about what would happen if the libraries were closed. 

PG has gone way farther along this trail than he should have, however, here is his last point.

PG just checked and the average per capita income in Llano County is a little over $44,000 per year. That translates to about $12 per hour. PG suspects that very few people living in Llano County, including the lawyers who practice there, earn $300 per hour, which is likely in the general range that the the Austin law firm will seek in the form of attorneys fees should the federal judge decides to hold anyone in contempt of court.

Business Musings: AI, Copyright, And Writers

From Kristine Kathryn Rusch:

Here we are—the mess of the mess of the mess. Right now, we’re in one of those technological befuddling moments, where the technology is ahead of the law.

What that means, exactly, is this: We’re not sure what the technology can do, so we don’t know if what it’s doing is legal, in a whole variety of ways.

The law is both a scalpel and a cudgel. If we use the law one way, it becomes a cudgel that smashes behavior and does its best to prevent the behavior from ever occurring again. Look at the laws against homicide in your state. Those laws are not scalpels. Those laws are cudgels, deliberately. As civilized humans, we don’t want other humans to commit murder for any reason. End of story.

(Please don’t write to me about exceptions. I know. I write entire novels about them.)

There are many times, however, that we need the law to be a scalpel. We need it to delicately carve good behavior from bad. We also don’t want it to accidentally smash something good to smithereens.

Just today, Dean and I were walking home in a wind tunnel created by the buildings near ours. The wind was bad anyway, but in that little area, it was extreme, like usual. Dean mentioned that there are entire computer programs that could explain why.

Those programs are often used now to examine how the wind works around bridges and tall buildings in relation to other tall buildings. In the past, those calculations were done by engineers and often by hand. One mathematical error and even brand-new bridges and buildings collapse.

. . . .

Now, though, tech allows us to prevent all kinds of wide-ranging disasters because of computer modeling.

In some ways, generative artificial intelligence in art, audio, and writing is nothing more than computer modeling. The artificial intelligence isn’t intelligence at all, at least as we know it. It’s an algorithm trained to respond in a particular way to a variety of inputs.

The inputs make the AI program reactive, not creative. My post last week titled “AI And Mediocre Work” dealt with a lot of this, but a comment by Matt Weber capsulized it with a quote from Oliver Sacks, in his book, An Anthropologist on Mars:

Creativity, as usually understood, entails not only a “what,” a talent, but a “who” — strong personal characteristics, a strong identity, personal sensibility, a personal style, which flow into the talent, interfuse it, give it personal body and form. Creativity in this sense involves the power to originate, to break away from the existing way of looking at things, to move freely in the realm of the imagination, to create and recreate worlds fully in one’s mind — while supervising all this with a critical inner eye.

These generative AI programs are useful for a variety of things, some of them mentioned in the comments on the last post, others mentioned in analysis about the programs that you can find most anywhere. What they are not is creative.

Let’s set that aside, though. We will all end up using these programs for one task or another.

What started this little miniseries of blogs was, in fact, my desire to start using AI audio. It had gotten to a level that I feel comfortable putting not only the blog posts into audio, but some of the nonfiction books as well. If you want to find out what I’m thinking about the various audio opportunities for my own work, please look at this post.

Up until that point, a lot of my readers thought I was opposed to using generative AI. I’m not. I have already used several different programs for minor things, and I’m going to use others for relatively major things.

I’m just as interested in the AI art programs as I am in the AI audio programs. I’ve used some mapping programs to help artists visualize the layout of my various worlds. I’m using the free programs, so the tools are often wrong in a variety of ways. I have to use words and bad maps to get my point across. But that’s okay.

I like some of the art I’m seeing from the various programs, and that art would be good enough to use on, say, short story ebook covers, where we don’t want to spend a lot of money. (If any.)

We’re not doing that yet, though, and there’s a really good reason.

Copyright.

The copyright issues on much of the AI usage are a complete mess and that, in my opinion, makes them dangerous to use in any commercial manner.

I don’t use the word “dangerous” lightly. Copyright issues could mean something as simple as removing the item from sale to hundreds of thousand paid in statutory damages.

The problem is that we don’t know what’s happening yet, and because we don’t know, we have to be really careful.

Some of the copyright issues can be resolved with a contract. The Terms of Service on these sites are contracts that you agree to, either by affirmatively clicking I accept or by using the site or by paying money for the service.

The problem with Terms of Service is that they can change on a whim. In its paper on artificial intelligence and copyright published in February, the Congressional Research Service made the passing comment about OpenAI, the developer of ChatGPT and DALL-E.

OpenAI’s current Terms of Use, for example, appear to assign any copyright to the user: “OpenAI hereby assigns to you all its right, title and interest in and to Output.” A previous version of these terms, by contrast, purported to give OpenAI such rights.

As I said, these terms can change drastically. It’s up to the user to check the terms constantly.

Contracts can supercede copyright if done properly, but doing the contracts properly means understanding the law.

And the law is just plain unclear. The article that I quoted above, from the Congressional Research Service, has a good overview of where the law stands right now in the U.S., and provides links.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

PG says AI is going to continue developing very quickly with or without changes in the copyright laws.

Yes, there undoubtedly will be changes in copyright laws, but legislators move at a snail’s pace compared with software engineers and designers. AI is a huge breakthrough and it will take some time for humans to coalesce around where lines are to be drawn between permitted and not permitted uses of AI.

There are certainly going to be some copyright infringement lawsuits and judges (who are anything but technically-oriented, but generally possess a respectable level of general intelligence) will make different and sometimes conflicting decisions for awhile.

Legislatures gonna legislate. Some will do better than others, but the first laws are going to be rough around the edges.

Wherever there are meaningful copyright laws, copyright attorneys are already thinking hard about AI and there will certainly be some lawsuits. That said, on the internet, there are plenty of places that are effectively beyond the reach of western copyright legislation. (China, Russia and a variety of island kingdoms come to mind.)

It’s going to be a legal Wild West for awhile. PG has already read articles about the various ways attorneys can use AI in litigation and contract drafting. He expects to read a lot more.

PG PS:

You should check out the comments to this post. Two valued and prolific TPV commenters elaborate on their forecasts and expectations regarding AI and courteously disagree with some of the thoughts the other has posted.

IPA welcomes Internet Archive Judgement.

From The New Publishing Standard:

IPA Secretary General José Borghino said:

“Given the enormous significance of this case to the global publishing industry, the IPA is deeply heartened by the comprehensive judgement of the US Court. Its firm backing of basic copyright principles is particularly comforting. IPA affirmed these principles in our Amicus brief to the Court, along with additional concerns about the United States’ international treaty obligations to uphold copyright protections on the Internet.”

The IPA statement further includes remarks from the President and CEO of the Association of American Publishers, Maria A. Pallante, who said:

“The publishing community is grateful to the Court for its unequivocal affirmation of the Copyright Act and respect for established precedent. In rejecting arguments that would have pushed fair use to illogical markers, the Court has underscored the importance of authors, publishers, and creative markets in a global society. In celebrating the opinion, we also thank the thousands of public libraries across the country that serve their communities everyday through lawful eBook licenses. We hope the opinion will prove educational to the defendant and anyone else who finds public laws inconvenient to their own interests.”

Link to the rest at The New Publishing Standard

Let it be noted that this is one set of statements from Big Publishing that PG agrees with.

In a Swift Decision, Judge Eviscerates Internet Archive’s Scanning and Lending Program

From Publisher’s Weekly:

In an emphatic 47-page opinion, federal judge John G. 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). And after three years of contentious legal wrangling, the case wasn’t even close.

“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 wrote in a March 24 opinion granting the publisher plaintiffs’ motion for summary judgment and denying the Internet Archive’s cross-motion. “But no case or legal principle supports that notion. Every authority points in the other direction.”

The ruling comes just days after a March 20 hearing, during which the judge sounded deeply skeptical of the Internet Archive’s case. At the 90-minute hearing, Elizabeth McNamara, arguing for the plaintiff publishers, told the court that the concept of controlled digital was “built on a fallacy” and that the Internet Archive’s scanning and lending of library books was copyright infringement on a massive scale. Arguing for the Internet Archive, Joseph Gratz countered that CDL is a carefully considered practice and that “lending books by more efficient technological means” was “transformative” and therefore protected by fair use.

. . . .

But after three years of litigation Koeltl easily found for the publishers, holding that the Internet Archive’s scanning and lending clearly constituted a prima facie case of copyright infringement and that the Internet Archive’s fair use defense failed on the facts and the law.

All four factors of the fair use test, Koeltl ruled, strongly favored the publishers.

“The crux of IA’s first factor argument is that an organization has the right under fair use to make whatever copies of its print books are necessary to facilitate digital lending of that book,” Koeltl writes. “But there is no such right, which risks eviscerating the rights of authors and publishers to profit from the creation and dissemination of derivatives of their protected works. IA’s wholesale copying and unauthorized lending of digital copies of the Publishers’ print books does not transform the use of the books, and IA profits from exploiting the copyrighted material without paying the customary price. The first fair use factor strongly favors the Publishers.”

Specifically, Koeltl strongly rejected what is essentially the most important argument for fair use under the first factor (which deals with the nature of the use, commercial, nonprofit, education, etc.)—that the Internet Archive’s program is “transformative.”

“There is nothing transformative about IA’s copying and unauthorized lending of the Works in Suit,” the judge found. “IA does not reproduce the Works in Suit to provide criticism, commentary, or information about them. IA’s e-books do not ‘add something new, with a further purpose or different character, altering the with new expression, meaning or message.’ IA simply scans the Works in Suit to become e-books and lends them to users of its website for free.”

Furthermore, Koeltl also dispatched with what he called the Internet Archive’s “first sale argument under the guise of fair use” as part of his first factor analysis.

. . . .

“In ReDigi, the Court of Appeals plainly held that the first sale doctrine…does not include a right of reproduction, and that any broader scope of the first sale doctrine should be sought from Congress, not the courts,” Koeltl held, citing the landmark 2018 appeals court decision which held there was no resale right for digital works under section 109 of the Copyright Act because, unlike physical works, the digital market necessarily involves unauthorized copies. “Although [the first sale doctrine] entitles IA and its Partner Libraries to resell or lend their lawfully acquired print copies, unauthorized reproduction, which is at the heart of IA’s online library, is not protected.”

After a cursory review of the second and third fair use factors (the nature of the works used, and the amount of the works used), which also tilted strongly to the publishers, Koeltl turned to the all important fourth factor: market impact. And despite the IA’s claims that the plaintiff publishers were not financially harmed by the Internet Archive’s controlled digital lending activities, those claims, Koeltl held, failed on both the facts and the law.

“In this case, there is a ‘thriving e-book licensing market’ for libraries,” Koeltl writes (pointing out that in 2020 OverDrive counted more than 430 million checkouts; that Penguin Random House’s library e-book licenses generate $59 million annually; and that, from 2015-2020, HarperCollins earned $46.91 million). “IA supplants the Publishers’ place in this market. IA offers users complete e-book editions of the Works in Suit without IA’s having paid the Publishers a fee to license those e-books, and it gives libraries an alternative to buying e-book licenses from the Publishers.”

Koeltl dismissed expert testimony suggesting that publishers’ bottom lines were unharmed by the Internet Archive’s online library, holding that as a matter of law it “deprives the Publishers of revenues to which they are entitled as the copyright holders,” because libraries would be incentivized “to offer IA’s bootleg e-books” rather than to “pay for authorized e-book licenses.”

And crucially, the judge brushed aside the Internet Archive’s “public benefit” argument with a single paragraph. “IA argues that its digital lending makes it easier for patrons who live far from physical libraries to access books and that it supports research, scholarship, and cultural participation by making books widely accessible on the Internet,’ Koeltl writes. “But these alleged benefits cannot outweigh the market harm to the Publishers.”

. . . .

The victorious publishers and their supporters offered a different, blunt assessment of Koeltl’s decision.

“IA tried to justify its illegal creation and distribution of e-books under a legally absurd theory of fair use. Judge Koeltl saw through their rhetoric and false comparisons,” said Authors Guild CEO Mary Rasenberger.

“The publishing community is grateful to the Court for its unequivocal affirmation of the Copyright Act and respect for established precedent,” said Maria A. Pallante, President and CEO of the Association of American Publishers. “In rejecting arguments that would have pushed fair use to illogical markers, the Court has underscored the importance of authors, publishers, and creative markets in a global society. In celebrating the opinion, we also thank the thousands of public libraries across the country that serve their communities everyday through lawful e-book licenses. We hope the opinion will prove educational to the defendant and anyone else who finds public laws inconvenient to their own interests.”

Link to the rest at Publisher’s Weekly

PG says that when a decision comes within a few days following the end of a trial in Federal Court, you can conclude that it was a slam-dunk case.

Tracking Generative AI: How Evolving AI Models Are Impacting Legal

PG has posted quite a number of AI-related items as they impact authors.

To make certain that authors don’t feel singled out, the following article discusses the impact AI is having on practicing lawyers and their support staffs.

From LegalTech News:

With so many antiquated fixtures in the legal industry colliding with new trends like artificial intelligence, data-harvesting and an altered relationship professionals have with their careers, the legal business is ripe for disruption.

But while the disruptive forces are timely, the reasons behind them are familiar: pricing pressure from consumers of legal services and service providers striving to deliver more value at a more competitive price point.

Here are three of the most commonly cited disruptors already underway in legal businesses, according to professionals implementing them who spoke at Legalweek 2023.

Bar Associations May Not Like Alternate Business Models…But Consumers Do

Corporations’ sophisticated use of data to control outside vendor costs is rubbing off on their legal service providers through greater attention to how projects are staffed and monetized.

At the front lines of these innovations in process management are alternative service legal providers and non-standard legal business structures, according to Legalweek panelists, many of whom are themselves leaders at alternative legal businesses.

In the minds of legal service consumers, distinctions between traditional law firms and new-age law firm businesses are breaking down, according to Rachel Zahorsky, managing director of client development at legal service provider Novus Law.

Plenty of resistance remains to the formation of alternative business structures in law, but it’s coming from state bar associations, not consumers, Zahorsky said. She said changes in Arizona and Utah will catch on in other jurisdictions because demand for new ways of accessing legal representation is there.

“Now there is no hesitation about where you fit or where you are [in the legal industry],” she said. “Although all the state bars are resistant, the buyers are all for it.”

Panelists said fee arrangements that differ from traditional hourly billing will play a role in legal departments’ decision-making. Technology has made legal teams so efficient that it’s hard to justify a high number of hours billed at high, four-figure hourly rates, said Stephanie Wilkins, Editor-in-Chief of Legaltech News.

. . . .

George Rudoy, firmwide leader of the legal consulting vertical of Crowe Global, a Swiss verein, said flat pricing is attractive to in-house legal departments because it incentivizes law firms to become more efficient so lawyers don’t work more hours than is profitable for the firm.

“If things are limited to a certain number, efficiency becomes key,” he said.

And contingency fees are attractive to corporations that want their law firm to share in the risk of pursuing a claim, Zahorsky said.

Pedigree Isn’t Everything

Until recently, and still in many corners of the legal industry, long-term relationships determined who got the work and who got hired. That goes for law firms recruiting from law schools and corporations sending work to their trusted counsel.

But panelists said the “rite of passage” for a young lawyer to practice for six years at a law firm before either making partner or heading in house has evolved; indeed, many young lawyers today have transitioned directly from law school to an in-house post, according to panelists. And law firms are diversifying their own recruitment pool to contend with a dearth in LSAT admission in recent years.

Rudoy said one of his favorite clients was a firefighter before becoming a lawyer, and she paid her way through law school by working at the station.

“When I approached her about the delivery of services through project management, it made sense to her because firefighters are all about process,” Rudoy said.

His anecdote highlights not only the growing emphasis on process management as a staple of attorney-client relationships, but he said it’s also a sign of the diversifying routes people can take to becoming a lawyer.

“For the new generation graduating from law school now, the world is open,” he said. “They try out different things. They might not be lawyers for a while. It’s a much more open field that allows lawyers to be more than one thing.”

Staffing for “large scale litigation,” once a question of how many lawyers of various ranks to staff, is becoming something closer to a movie production, uniquely designed for the needs of a specific project, Zahorsky said.

“It’s not going to be same team always. It’s going to be about who has the particular skill set or expertise,” she said. “Staffing is not just about the numbers but who are the specific experts.”

This skill shake up is also taking place between law firms and the corporate clients they serve. Panelists said in-house lawyers are getting choosier about who they send work to rather than reflexively sending work to the firm with whom they have a long-time relationship or from whom they’ve been recruited.

“It’s common for counsel or an associate to have a relationship from the firm they came from and the corporate legal department will lean on that firm for their work, but now they are asking how much are they reutilizing knowledge,” Rudoy said.

“We see corporate entities being much more diversified with their law firms. If they have a smaller case, like an employment issue, they will look for better service for lower fees,” he added.

Artificial Intelligence Will Force Lawyers to Be Tech-Literate

It’s no revelation that data and technology will continue to play a role in the legal profession as lawyers look for ways to anticipate client needs and automate mundane functions. However, previous legal tech trends haven’t caught on the way panelists expect artificial intelligence to.

Wilkins said firms’ use of technology is going to be a differentiating factor for general counsels choosing firms, especially when it comes to artificial intelligence. Unlike other tech trends in law, AI isn’t a fad, Wilkins said, because its potential uses are so broad.

“AI will get legal to not be the tech dinosaur that it’s been,” Wilkins said.

“AI is not replacing lawyers, but lawyers who use AI are going to replace lawyers who do not,” she continued. “You have to be willing to be innovative because your competition is.”

But panelists said emerging legal tech like AI isn’t a magic bullet, and is only as good as the professionals—and processes—deploying them.

“There needs to be the right people to solve those problems,” Wilkins said. “The best tool in the world can’t help anything if you don’t use it and your people don’t know how to use it.”

Rudoy, a former Am Law 50 firm leader, said he once asked how technology would be used in the process of a certain case, to which a partner asked him why he would ask such a question if he’s not in the IT department.

“Knowledge of tech isolated from legal advice or legal advice isolated from the process is a thing of the past,” Rudoy said.

The competitive environment for gaining client business based on evolving standards has led law schools to begin developing classes on legal business management with a tech focus, said Elizabeth Lugones, COO and senior advisor at UpLevel Ops, which consults in-house legal departments. This is a contrast from a sole focus on the “black letter of the law,” Wilkins said, referring to her own legal education.

“You have got to get them young,” said Lugones. “This shouldn’t be the first time you hear about how to manage a budget or what a CLM is. These are critical concepts for lawyers. We need to start earlier. You’re going to start seeing schools offering classes on how you run the business of law.”

Link to the rest at LegalTech News

PG started talking with attorneys in various bar associations about making their practices more efficient using technology in smart ways more than forty years ago.

PG was an early convert to dedicated word processors before the personal computer showed up. His basic premise was, “Why have your secretary/paralegal/assistant type the same thing twice if you can save an electronic file of the document and, with minimal changes to customize that document for the benefit of another client and another one after that, etc., etc. etc.

When the personal computer showed up, PG bought the first one long, long before any other attorney within 200 miles had purchased one. He went through the small number of word processing software products available before he settled on WordPerfect (let us all give a silent prayer for Allan Ashton and Bruce Bastion for this wonderful product, now left to languish after the two founders sold it about 15-20 years later).

At the height of WordPerfect’s popularity with lawyers, Microsoft Word was a retrograde, difficult to use mess that wouldn’t format legal documents without an immense amount of aggravation.

Wordperfect was very handy to use with macros and PG had at least a hundred of them for his law practice. His two secretaries had their own computers with their own favorite macros on their machines.

For some types of documents, PG could finish an initial client interview, escort the client out of his office to sign a retainer agreement and write a check for an initial payment, then go back to his office, create the document and have it printing out on one of the laser printers near his secretaries before the client had left the law office.

With only a handful of exceptions, one of PG’s assistants would contact the client two-three days later to come back to the law office to review and sign the documents that PG had finished printing within 2-3 minutes after they had left his office following their initial conference.

PG performed about 70-80% of his work on a flat-fee basis instead of charging by the hour. His flat fees were typically about 10%-20% lower than the going rate of every other attorney within twenty-five miles of his office.

PG can confidently say that he had a larger income than any of those attorneys because he handled far more clients efficiently than other law offices did and could generate error-free documents because he and his secretaries used computers and top-quality computer programs as something much more than typewriters.

Charging for legal work by the hour was dumb way back when and it is dumb now. Hourly fees reward inefficient attorneys or OCD attorneys (two sides of the same coin). Attorneys typically have a higher rate of divorce than many other professions because they spend way too much time working in their offices instead of with their families.

Since PG is on a retrospective rant, he will also report that he was very popular with the organizers of Continuing Legal Education programs because he always drew a large crowd (each member of which had paid a fee that was always too high to the CLE organizers) to watch PG while he showed them how he used his computer in his law office.

But that’s all ancient history except too many lawyers are still OCD and inefficient.

Book fraudster Filippo Bernardini spared jail

From The Guardian:

The man who stole more than 1,000 manuscripts so he could be “one of the fewest to cherish them before anyone else” will not be jailed.

Filippo Bernardini, who worked as a rights coordinator, pleaded guilty to one count of wire fraud in New York in January.

He was yesterday sentenced by judge Colleen McMahon to time served, meaning he will not be imprisoned, according to the Bookseller. He has agreed to pay $88,000 (£72,700) to Penguin Random House to cover the legal and expert fees the company paid as a result of his scheme.

Bernardini has also been sentenced to three years of supervised release, and will be deported from the US to the UK or Italy, where he grew up.

The former publishing employee, who worked for Simon & Schuster in the UK – the company has not been implicated in any of Bernardini’s crimes – had said in court documents that he had a “burning desire” to feel like he was a publishing professional. He added that he had no desire to leak the manuscripts he acquired.

After seeing scripts being shared among colleagues, he set up a spoof email address and managed to obtain a manuscript.

“When that request was successful, from that moment on, this behaviour became an obsession, a compulsive behaviour,” he wrote in papers submitted to the court.

During the scheme, in which he impersonated agents and publishers over email, Bernardini obtained manuscripts of books by Margaret Atwood, Sally Rooney and Ian McEwan, among others.

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

At Hearing, Judge Appears Skeptical of Internet Archive’s Scanning and Lending Program

From Publisher’s Weekly:

After nearly three years of legal wrangling, the Internet Archive’s scanning and lending program finally got its day in court on Monday, March 20. And if Judge John G. Koeltl’s questions are any indication, the Internet Archive is facing an uphill battle.

Over the course of a 90-minute hearing on the parties’ cross motions for summary judgment, Koeltl appeared skeptical that there was sufficient basis in law to support the Internet Archive’s scanning and lending of print library books under a legally untested protocol known as controlled digital lending, and unconvinced that the case is fundamentally about the future of library lending, as Internet Archive attorneys have argued.

“To say that this case is about the ability of a library to lend a book that it owns ignores whether the library has a right to copy wholesale the book,” Koeltl offered at one point during an extended exchange with IA attorney Joseph Gratz. “Does a library have the right to lend a book that it owns? Of course,” the judge conceded. But the question at the heart of this case, he added, is “whether a library has the right to make a digital copy of a book that it owns and then lend that digital copy, which it has made without a license and without permission” to patrons. “To formulate the issue in this case as simply ‘does the library have a right to lend a book that it owns’ belies the issue in the case,” Koeltl said.

In its motion for summary judgment, lawyers for the publishers argue that the Internet Archive is guilty of illegally digitizing tens of thousands of in-copyright print books and making them available to readers worldwide. “No case has held or even suggested that IA’s conduct is a lawful fair use,” the publishers argued.

In its motion for summary judgment, the Internet Archive counters that its efforts to scan legally acquired physical books and lend the scanned editions in lieu of the print under conditions that mimic physical lending is protected by fair use. “The Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world,” the IA brief states. “Copyright law does not stand in the way of a library’s right to lend its books to its patrons, one at a time.”

Opening the day’s hearing, Elizabeth McNamara, arguing for the publishers, reiterated the plaintiff’s position that the Internet Archive’s scanning and lending program has no basis in law. “In short, CDL is built on a fallacy,” McNamara told the court. “No laws support this mass duplication and digitization of millions of books to distribute the entire world for the identical purpose that they were originally published, to be read. And for good reason—if this conduct was sanctioned, it would destroy the rights and controls of copyright holders.”

Disputing the defendant’s contention that there is no evidence of any net loss to the publishers from the IA’s program, McNamara argued that the existence of a “thriving” licensed access library e-book market, and potential lost license fees, was sufficient to show harm. “Because you don’t like the price or you don’t like the terms the answer to that is not that you steal,” McNamara told the court. “That is basically the IA’s answer, that we don’t like that market, we don’t want to pay it, it’s not in our interest to pay it and so we’re entitled to just duplicate your work without authorization and distribute it to the world. Well, that isn’t the way the law works and it’s not the way we work in markets.”

Arguing for the Internet Archive, Gratz maintained that the scanning and lending of library books under CDL rules is a lawful extension of the library’s traditional mission and that the IA’s creation of digital copies is “transformative” because the digital copy at issue is merely “incidental” to the loaning of a lawfully acquired corresponding physical book.

“Lending books by more efficient technological means does not offend the purposes of copyright,” Gratz argued. “Instead, it more effectively furthers those aims.”

Gratz also argued that there is “no evidence of harm such that taking away CDL from a library will harm those libraries and their patrons with no countervailing economic benefits to the publishers,” maintaining that the publishers did not lose “one dime” to the IA’s scanning and lending program.

But Koeltl peppered Gratz with questions throughout the hearing, appearing deeply skeptical that the Internet Archive’s fair use case was properly supported by case law, and unconvinced that the publishers’ market for library e-books was not impacted by libraries choosing to scan print books under CDL protocols.

“A library whether they hold a physical copy or not, has the ability to license an e-book from a publisher. Rather than pay that licensing fee to the publisher some libraries choose to make their own copy and to lend that copy. Why isn’t it self-evident that that deprives the publisher of the fees that the publisher could otherwise obtain from licensing an e-book to that library?” Koeltl asked.

“It is because with respect to the copies at issue in the CDL situation the question is not between OverDrive and nothing. The question is between physically lending a book to a particular patron, for which no payment would be due to a publisher, or digitally lending that book to the patron,” Gratz replied, adding that to find harm “there would need to be a reason to think that the publishers were worse off than the situation in which in which the fair use did not occur at all.” In fact, library e-book lending has grown throughout the existence of the IA’s scanning program, and actually surged during the height of the pandemic.

Koeltl sounded largely unmoved, however. And in her closing rebuttal, McNamara reiterated the publishers’ claim that “if CDL were given a green light” it would have a “a significant impact” not only on the library e-book market but on the consumer e-book market as well.

Link to the rest at Publisher’s Weekly

PG says that you can’t conclusively discern from questions a judge or group of judges ask the attorneys during a summary judgement or other hearing similar to that described in the OP that the court will rule one way or another.

Judges differ in the manner in which they deal with counsel during arguments concerning a motion or during the trial of a case. They can be playing devil’s advocate to probe each side’s reasoning and their charicization of various statlues or court cases they’re relying upon to support their contentions.

That said, based upon the OP’s description of what went on, PG doesn’t give the Internet Archive much of a chance of prevailing in this judge’s court.

Publishers, Internet Archive Set for Key Hearing Today

From Publisher’s Weekly:

After nearly three years of legal wrangling, a federal judge today will hear cross motions for summary judgment in a closely watched lawsuit challenging the legality of the Internet Archive’s program to scan and lend print library books.

First filed in New York on June 1, 2020, by four major publishers (Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House) and the Association of American Publishers, the copyright infringement lawsuit alleges that the Internet Archive’s scanning and lending of library books under an untested legal theory known as “controlled digital lending” is piracy on an industrial scale. The Internet Archive counters that it’s activities are legal, protected by fair use, and that the publishers’ action fundamentally threatens the core mission of libraries to own and lend collections in the digital age.

The wheels of the lawsuit first began to turn in late March 2020, in the early days of Covid-19 pandemic, when, with libraries and schools shuttered, the Internet Archive unilaterally launched the National Emergency Library, a program that temporarily removed controls on the scanned titles in the IA’s Open Library, making them available for multiple user borrowing. The move sparked outrage from author and publisher groups.

The suit, however, is about about more than the National Emergency Library (which shuttered in early June 2020, in the wake of the litigation). Rather, the suit challenges the legitimacy of controlled digital lending and the fundamental legality of scanning and lending library books without permission.

Under CDL, libraries (including the Internet Archive) make scans of their legally acquired physical books and loan the scans in lieu of the print under rules that mimic physical lending: only one person can borrow a scan at a time; the scans are DRM-protected; and only one format can circulate at a time to maintain a one-to-one “owned-to-loan” ratio. In other words, if the scan is checked out, its print counterpart cannot circulate, and vice versa.

. . . .

[L]awyers tell PW the case very likely will be decided at the summary judgment stage, as there are few factual disputes at issue in the case. Barring a surprise settlement, however, the case is likely far from over, as the outcome of today’s hearing, whichever way it goes, would likely be appealed.

Link to the rest at Publisher’s Weekly

Generative AI is a legal minefield

From Axios:

New generative AI systems like ChatGPT and Dall-E raise a host of novel questions for a legal system that always imagined people, rather than machines, as the creators of content.

Why it matters: The courts will have to sort out knotty problems like whether AI companies had rights to use the data that trained their systems, whether the output of generative engines can be copyrighted, and who is responsible if an AI engine spits out defamatory or dangerous information.

Between the lines: New laws specific to AI don’t yet exist in most of the world (although Europe is in the process of drafting a wide-ranging AI Act). That means that most of these issues — at least for now — will have to be addressed through existing law.

  • Meanwhile, critics say that as the field has accelerated, companies are taking more risks.
  • “The more money that flows in, the faster people are moving the goal posts and removing the guardrails,” says Matthew Butterick, an attorney whose firm is involved in lawsuits against several companies over how their generative AI systems operate, including Microsoft’s GitHub.

Here are four broad areas of legal uncertainty around AI:

Should AI developers pay for rights to training data?

One big question is whether the latest AI systems are on safe legal ground in having trained their engines on all manner of information found on the internet, including copyrighted works.

  • At issue is whether or not such training falls under a principle known as “fair use,” the scope of which is currently under consideration by the Supreme Court.
  • Much of the early legal battles have been about this issue. Getty, for example, is suing Stable Diffusion, saying the open source AI image generator trained its engine on 12 million images from Getty’s database without getting permission or providing compensation.
  • CNN and The Wall Street Journal have raised similar legal issues about articles they say were used to train Open AI’s ChatGPT text generator.

It’s not just about copyright. In a lawsuit against GitHub, for example, the question is also whether the CoPilot system — which offers coders AI-generated help — violates the open source licenses that cover much of the code it was trained on.

  • Nor are the potential IP infringement issues limited to the data that trains such systems. Many of today’s generative AI engines are prone to spitting out code, writing and images that appear to directly copy from one specific work or several discernible ones.
Can generative AI output be copyrighted?

Works entirely generated by a machine, in general, can’t be copyrighted. It’s less clear how the legal system will view human/AI collaborations.

  • The US Copyright Office this week said that images created by AI engine Midjouney and then used in a graphic novel were not able to be protected, Reuters reported.
Can AI slander or libel someone?

AI systems aren’t people, and as such, may not be capable of committing libel or slander. But the creators of those systems could potentially be held liable if they were reckless or negligent in the creation of the systems, according to some legal experts.

  • ChatGPT or Microsoft’s new AI-powered Bing, for example, may face a new kind of lawsuit if the information they serve up is so defamatory as to constitute libel or slander.

The problem is trickier still because AI shows different results to different people.

  • Unlike traditional apps and web sites, which generally return similar information given the same query, generative AI systems can serve up completely different results each time.

Courts will also have to decide how, if at all, the controversial Section 230 liability protections apply to content generated by AI systems.

  • Supreme Court Justice Neil Gorsuch recently sounded a skeptical note as to whether Section 230 would protect ChatGPT-created content.

Link to the rest at Axios

Licensor Beware: Copyright Protections in Peril

From IP Watchdog:

Companies rely on copyright protections to shield their software, data sets, and other works that are licensed to their customers; however, a reframing of what constitutes a “transformative use,” and the extent a license can restrict such fair uses, may whittle away all avenues of protections. On October 22, 2022, the Supreme Court of the United States heard arguments for Andy Warhol Foundation v. Goldsmith. The question before the Court is where does a copyright holder’s right to create derivative works stop and “fair use” of the work begin? Companies that license data sets or data feeds should pay close attention, as the Court’s decision could narrow contractual remedies.

Warhol v. Goldsmith

In 1984, Vanity Fair commissioned Andy Warhol to create art depicting Prince for the cover of the magazine and obtained a license from Goldsmith for the express right to use Goldsmith’s photo of Prince as “an artist reference for an illustration to be published in Vanity Fair November 1984 issue.” Warhol proceeded to create 12 silkscreen paintings, two screen prints on paper, and two drawings based on Goldsmith’s photo of Prince.

The Andy Warhol Foundation (AWF) retains ownership of the copyright to the works based on the Goldsmith photo, which it licensed after Prince’s death in 2016 to Vanity Fair and Conde Nast. Goldsmith sued AWF for copyright infringement claiming that the license did not authorize Warhol to create more than one work and that Goldsmith did not receive any additional compensation. AWF argued that Warhol’s other uses of Goldsmith’s photo were transformative and protected by fair use.

Section 107 of the Copyright Act lists the following factors to determine what is fair use:

  1. The purpose and character of the use.
  2. The nature of the copyrighted work.
  3. The amount of the original work used.
  4. The effect on the market for the original work.

When considering the first factor, courts consistently hold that transformative uses of a copyrighted work are fair use. See e.g., Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). To determine if a work is “transformative,” the court must conclude whether the new work “merely supersedes the objects of the original creation,” or whether the new work transfers and alters the original with new expression, meaning, or message. If a new work is sufficiently transformative, and thus fair use of a copyrightable work, then the new work can be licensed, sold, or used without a license from the original creator.

Fair use originated as an “equitable rule of reason” allowing courts to avoid rigid application of the copyright law stifling creativity. In Google v. Oracle, the Supreme Court ruled that Google’s use of 11,500 lines of code from Java SE (Java is owned by Oracle) when developing Google’s Android operating system was sufficiently transformative (although the court did not determine whether Application Program Interfaces (APIs) were copyrightable). Justice Stephen Breyer’s majority opinion distinguishes between implementing code and declaring code, with implementing code requiring more skill and creativity than declaring code. The Court held that Google’s direct copying of only “what was needed to allow users to put their accrued talents to work in a new and transformative program,” was a transformative use.

Implications for Licensors

The Warhol case highlights the uncertainty of contract remedies given Warhol’s patent violation and expansion of the license from Goldsmith because the contract restricted Warhol’s use of Goldsmith’s photo for a one-time purpose. A logical extension of the Warhol and Google decisions calls into question what protection copyright truly offers if a licensee can rearrange the protected work and claim that the new work is transformative.

License agreements typically have a limitation of liability clause. Theses clauses include exceptions to the cap on liability if licensee breaches the terms of the agreement or if the licensee’s use of the data infringes on the licensor’s intellectual property rights, including copyrights. Licensors’ business models rely on these exceptions to the limitation of liability to shift risk to the licensee; however, if the use is transformative, then the licensee did not violate the licensors’ intellectual property rights. The licensor could bring a breach of contract claim against the licensee alleging that even if the new work is transformative and doesn’t violate the licensor’s copyright, the licensee’s new work violates the terms of the agreement which only permitted use for an internal business purpose.

However, a split between federal appeals courts concerning whether the Copyright Act broadly preempts state law claims, including breach of contract claims, further complicates contract protections. While all federal appeals circuits apply the same preemption test – examining whether a breach of contract claim includes an “extra element” that makes it “qualitatively different” from a copyright infringement claim – the circuits disagree as to whether the existence of a contractual promise itself is an “extra element” sufficient to avoid copyright preemption. ML Genius Media Group v. Google LLC, No. 20-3113, (2d Cir. Mar. 10, 2022), compare with Utopia Providers Sys., Inc. v. Pro-Med Clinical Sys., LLC, 596 F.3d 1313, 1327 (11th Cir. 2010).

Thus, if the Supreme Court rules in Warhol’s favor, a licensor would have no remedy against a licensee for a copyright infringement claim if the use is deemed transformative and such licensor would likely have no remedy for a breach of contract claim because such claim is not qualitatively different and therefore is preempted by the Copyright Act.

Link to the rest at IP Watchdog

PG usually removes links in the items he posts. He’s not doing so with this post for visitors who may want to dive deeper into the matter.

It’s rare for the US Supreme Court to accept a dispute involving Intellectual Property law – copyrights, patents, etc., so, in the narrow sphere of IP lawyers, this decision is anxiously anticipated. Regardless of how the decision goes, it’s going to upset the apple carts of more than a few somebodies.

Trademark Registration: 100% THAT BITCH

From PatentlyO:

In a new precedential opinion, the TTAB (The Trademark Trial and Appeal Board) has sided with the musical artist Lizzo — agreeing to register her mark “100% THAT BITCH” for use on apparel.  The Trademark Examining Attorney had refused registration on “failure-to-function” — concluding that the phrase was a commonplace expression used to express a well-recognized sentiment.

. . . .

The phrase comes from Lizzo’s 2017 song Truth Hurts (remade in 2019) that has become a viral sleeper hit.  The original line in the song is “I just took a DNA test, turns out I’m 100% that bitch.” But Lizzo herself did not create the phrase. Rather, Lizzo apparently saw a social media meme about being 100% that bitch and then added it to her song.  The examining attorney concluded that “evidence that consumers may associate the phrase with the famous singer/song because it was a lyric in the singer’s song does not entitle the applicant as a singer-songwriter to appropriate for itself exclusive use of the phrase.”

On appeal, the TTAB reversed the refusal.  Unlike patents and copyrights, trademark law is not designed to reward the creative endeavor of invention or authorship.  Rather, trademark is designed as a consume-protection and market-function tool and so focuses on consumer perception.  Here, the evidence suggests that the mark is being used in an ornamental fashion (rather than as simply words) and that ordinary consumers associate the mark with Lizzo.  Even though she didn’t create the words – she is the one who made them popular and transformed the “lesser known phrase to more memorable status.”  On those grounds, the TTAB concluded that the mark is registrable and thus reversed the denial.

A few years ago the mark would have also been rejected as scandalous, but that issue has been off the table since the Supreme Court’s FUCT decision.

Link to the rest at PatentlyO and thanks to C. for the tip.

PG usually avoids terms that might offend visitors to TPV, but there was no alternative in this case considering the copyrighted term.

As the OP makes clear, there is a distinction between copyright and trademark laws although they are sometimes regarded as similar by those prudent enough at a young age to avoid law school.

Sentenced to Law School

PG acknowledges that this this is not the usual discussion fodder he posts about.

For those unfamiliar, The ABA Journal is the monthly magazine published by The American Bar Association. The ABA is the largest voluntary bar association in the United States.

In order to practice law in the United States, a person must be a member of a state bar association. That’s a mandatory bar association that typically requires a graduate from an accredited law school to pass a bar exam. The difficulty of the exam varies from state to state. California has typically had the most difficult bar exam with a typical pass rate of around 50%.

So, the ABA doesn’t include a lot of blue collar lawyers. Back when he was a blue collar lawyer, PG was a member of the ABA because they usually paid his way to attend the Annual Meeting. The reason the ABA paid was because PG would present a continuing legal education program which a lot of lawyers liked in the legal world of long ago. PG also wrote a monthly column for The ABA Journal about computers and lawyers.

Why was PG in demand to be a presenter? He understood how to use computers in a law office at a time when a very small percentage of lawyers knew how to operate a computer, let alone had one in their office. They paid secretaries or paralegals to do that sort of thing for them. Needless to say, that generation of lawyers are long gone to that big bar meeting in the sky.

From the ABA Journal:

Based on federal sentencing guidelines, people found guilty of trafficking large amounts of cocaine usually face lengthy sentences. However, a Texas defendant received what many say is an unusual punishment: five days in prison with credit for time served and direction from the judge to complete her JD.

Chelsea Nichole Madill was accused of trafficking 28.5 kilos of cocaine in a 2018 criminal complaint. She was charged in the U.S. District Court for the Southern District of Texas, and in 2019, Madill pleaded guilty to possession with intent to distribute a Schedule II drug.

Federal sentencing experts say the average penalty for that crime is around five years. In addition to the law school piece and no prison time, Madill was sentenced to three years of supervised release. The 2023 sentencing judgment was written by Southern District of Texas Chief Judge Randy Crane.

Much of the record is sealed, and whether Madill attended or completed law school is not disclosed. There is someone with that name listed as a 2L Florida A&M University College of Law student bar association board member. A 2019 order authorized travel expenses for Madill, directing the U.S. marshal to obtain the cheapest means of noncustodial transportation possible between her Florida residence and the McAllen, Texas, courthouse.

“The court would suggest that the least expensive means would be via bus and not by airplane,” the judge wrote.

Madill did not respond to an ABA Journal interview request sent through LinkedIn, and her phone number listed in court records was disconnected. FAMU Law also did not respond to ABA Journal interview requests.

She could have had what is known as “the girlfriend problem,” says Douglas A. Berman, an Ohio State University Moritz College of Law professor. The term refers to long sentences for women who may not be actively involved in “serious drug dealing” but participate in trafficking to preserve a relationship with a boyfriend or husband, Berman says.

“Maybe the judge thought requiring pursuit of a law degree would reduce the likelihood she’d get involved with the wrong folks,” says Berman, who writes the Sentencing Law and Policy blog.

He adds that rehabilitation should be a goal in sentencing.

“The threat of serious confinement often gets people behaving well. She may have been extra motivated to be the best version of herself while this was pending,” Berman says.

Or it could have been the judge ensuring Madill would keep her word.

“Given the sparseness of the record, my first instinct was, the judge doesn’t want to be snookered by the argument of ‘I’m going to go to law school, so give me a break’ if she’s not going to see it through,” Berman says.

Jesse Salazar, the assistant U.S. attorney assigned to the case, referred an ABA Journal interview request to a public affairs officer. The PAO said the office did not object to the sentence.

https://www.abajournal.com/web/article/order-directs-defendant-to-finish-law-school-could-that-be-a-good-bar-admission-defense

Defamation of a Public Figure vs. Private Figure Explained

From Minc Law:

The difficulty of proving your defamation case, and if you even have a valid claim at all, may depend on if the court considers you a public figure or a private figure.

In the context of defamation, a public figure is generally defined as an individual who has assumed a role of prominence in society or voluntarily or involuntarily thrust themselves into the public spotlight, like a government official, a celebrity, or even a person at the heart of a controversy. Public figures have a higher burden of proof when bringing a defamation claim; they must show that the defendant acted with actual malice or reckless disregard for the truth when publishing a false statement.

A private figure, on the other hand, is generally defined as anyone who does not qualify as a public figure and is not in the public spotlight. Private figures must only prove that the defendant acted with ordinary negligence when publishing a false statement.

. . . .

Who Are Public Figures in the Defamation Arena?

The distinction between public figures and private individuals matters in defamation law because it changes the burden of proof in bringing a lawsuit.

To succeed in a defamation lawsuit, the plaintiff must show that the statement was untrue and harmful to their reputation. On top of these factors, a public figure must also demonstrate that the defamer made the statement with malice (or malicious intent to harm them).

Definition of Public Figures in Defamation Law

In legal terms, a public figure is an individual who is at the forefront of public issues or performs a prominent role in society. Those with a certain amount of fame or renown can also be considered public figures. For example, the following people would be considered public figures in a defamation law case:

  • Government officials and politicians,
  • Prominent business leaders,
  • Celebrities, and
  • Famous sports figures and athletes.

. . . .

Most U.S. states take the idea of public figures one step further by expanding the public figure classifications into three types: public officials, all-purpose public figures, and limited-purpose public figures.

Public Officials

Public officials are not just elected officials or politicians. They include any individual whose role has a major influence over government and societal events, as well as those who work for elected representatives. 

However, not every government official would be considered a public figure in a defamation case. The difference is generally in how prominent and influential the individual is in their role. For example, while an elected prosecutor may be considered a public official, an administrative assistant in the prosecutor’s office may not be.

What is the Difference Between All-Purpose Public Figures & Limited-Purpose Public Figures?

Aside from public officials, other public figures are split into two categories: all-purpose and limited-purpose. An all-purpose public figure has achieved “pervasive fame or notoriety,” like a traditional celebrity.

On the other hand, a limited-purpose public figure is injected into “a particular public controversy and thereby becomes a public figure for a limited range of issues.

A limited-purpose public figure can be voluntarily or involuntarily drawn into the public eye. Examples of voluntary limited-purpose public figures include minor athletes or actors, social activists, or those who enter into the public debate about a controversial topic. An involuntary limited-purpose public figure did not choose to become involved in a controversy or important event.

In the significant court case of Dameron vs. Washington Magazine, the plaintiff Merle Dameron was the sole air traffic controller on duty the day of a plane crash near Dulles airport in 1974. While he was never found at fault for the crash, local magazine The Washingtonian issued claims that he was partly to blame for the passengers’ deaths.

The court found that while Dameron did not “inject” himself into the public debate, he did become involved in this public affair without his consent. He was, therefore, considered a limited-purpose public figure. 

This case established a three-part framework for determining whether an individual is a limited-purpose public figure:

  • There is a public controversy,
  • The plaintiff played a central role in the controversy, and
  • The defamation was pertinent to the plaintiff’s involvement in the controversy.

What Are Some Examples of Public Figures?

The following list gives real-world examples of public officials, all-purpose public figures, and limited-purpose public figures:

  • President Joe Biden (public official);
  • First Lady Dr. Jill Biden (all-purpose public figure);
  • Chris Evans, a well-known actor (all-purpose public figure);
  • Jeff Bezos, billionaire and CEO of Amazon (all-purpose public figure);
  • LeBron James, NBA all-star (all-purpose public figure);
  • Minor-league baseball player with limited name recognition (limited-purpose public figure);
  • A previously unknown activist who generates news at a Black Lives Matter protest (limited-purpose public figure).

Why Are Public Figures Considered to Have Significant Ability to Counteract Defamation?

It is not necessarily true that public figures are considered to have a significant ability to counteract defamation—at least in the legal sense. The legal standard is tougher for public figures to counteract defamation because our society values free speech, uninhibited debate, and public information about those of pervasive influence.

For example, if John Smith publishes a blog post falsely claiming his neighbor was convicted of armed robbery 10 years ago, the neighbor will likely win a defamation case against him. But if John makes the same claims about his senator, it would be much more difficult for the senator to win a case. John simply needs to show that he had a “good faith belief” in the negative claim (meaning he acted with negligence, not actual malice).

Courts usually hold that public figures do not need as much reputational protection because they have placed themselves in the spotlight and must expect some level of negative attention. Public figures tend to have a greater ability to use the media or an online platform to counteract a narrative about them.

Because public figures usually have a larger social media following and better access to the media than private citizens, they have other means of making the truth known without involving the courts. For example, a celebrity who is the subject of false rumors can give an interview with a magazine, discuss the truth on a talk show or podcast, or post their side of the story on social media.

What Are the Requirements For Proving Defamation of a Public Figure?

In all defamation cases for both public and private persons, the plaintiff must prove that a statement was:

  • A false statement of fact (i.e., not an opinion) about the plaintiff,
  • Communicated to a third party,
  • Made with at least a negligent level of intent, and
  • Harmful to the plaintiff’s reputation.

For public figures, there is an additional requirement to bring a defamation claim. They must prove that the defamer acted with actual malice. In other words, the defamer knew that the statement was false—or they acted with reckless disregard for whether the statement was true or false. 

This requirement can be broken down even further for public officials, all-purpose public figures, and limited-purpose public figures.

Public Officials’ Burden of Proof

Public officials must demonstrate that the defamer acted with actual malice for both public and private matters. Regardless of if the defamatory statement referred to the official’s private life or public record, they must have acted with actual malice or reckless disregard.

All-Purpose Public Figures’ Burden of Proof

Similarly, the actual malice standard for all-purpose public figures applies to nearly all facets of their lives.

Limited-Purpose Public Figures’ Burden of Proof

For limited-purpose public figures, however, the standard of actual malice only applies to the area(s) that make the individual a public figure.

For example, a minor-league athlete falsely accused of doping would need to prove actual malice—but not if the defamatory statement pertains to his private life instead.

. . . .

What is a Private Figure in the Context of Defamation?

Public figures are those in the public spotlight, whether due to their occupation, celebrity, or participation in a controversy or public conversation. But the existence of public figures necessitates private figuresIn this section, we define a private figure and how they should prove their case in a defamation lawsuit.

Definition of a Private Figure in Terms of Defamation Law

A private figure is not in the public eye. Unlike public figures, they have not been drawn into a public controversy—whether voluntarily or involuntarily—and they are not a public official or a celebrity.

What Are Some Examples Of Private Figures?

Listed below are a few general examples of individuals that would be considered private figures in a defamation case:

  • A high school principal. 
  • A private guardian accused of sleeping with a client’s father. 
  • A local news reporter who left their job at a local television station. 
  • A company that does not advertise extensively. 

How Must Private Individuals Prove Defamation?

Since private figures have not entered the public spotlight through their career or role in a public controversy, the law aims to protect their privacy. Private individuals, therefore, have a less strict burden of proof in a defamation matter.

A private figure plaintiff must only prove that the defendant acted with ordinary negligence—not actual malice or reckless disregard. “Ordinary negligence” means the defendant did not act with the caution an ordinary person would take in a similar situation.

However, some states still require private figures to show actual malice if they expect to recover punitive damages in a defamation claim.

How Should a Claim Show Fault on the Part of the Defamer?

Though the specific standard can vary from state to state, the plaintiff must prove the core elements of defamation to succeed in a claim:

  • An unprivileged, false statement of fact was made about the plaintiff,
  • It was communicated to a third party,
  • It was made with at least a negligent level of intent, and
  • It damaged the plaintiff’s reputation.

What is Negligence in Terms of Defamation Law?

A defendant may be found negligent if a reasonable person would take the time to research the truth of the statement before publishing it. If they did not act with the reasonable prudence an ordinary person would take in a similar situation, they acted with at least a negligent level of intent.

Link to the rest at Minc Law

PG notes that there are lots of links to additional materials, definitions, cases, etc., in the OP that PG, as is his usual practice, omitted.

With respect to the adjacent post regarding former President Trump filing a defamation suit against Simon & Schuster and a former prosecutor who is the author of the book Trump claims is defamatory, PG notes that Mr. Trump is on the highest perch of public figurehood.

That said, PG has no knowledge of the suit other than the OP and is in no position to comment on the merits of the suit.

He does hope the author of the offending book was intelligent to change the standard New York publishing contract to provide that the publisher would pay all of the author’s legal fees and court costs if Trump sued the author (with or without suing the publisher).

In the standard New York publishing boilerplate, in the event of a defamation suit against the publisher (the author is almost always named as a defendant as well) the author will not only be responsible for her/his own legal fees, but is also obligated to pay the publisher’s legal fees and damages assessed against the publisher as well.

PG expects that in the Trump suit, Simon & Schuster will employ excellent and expensive litigation counsel. PG is not as familiar with New York City litigation costs as he used to be, but he would be very surprised if S&S’s legal fees for handling this matter would total less than seven figures. High seven figures is a possibility that crossed PG’s mind.

As far as insurance to cover legal expenses of a publisher, PG is doubtful that any sane insurance company would agree to cover this sort of risk. But he could be wrong.

Trump Threatens to Sue Former Prosecutor, S&S over Forthcoming Tell-All

From Publisher’s Weekly:

Embattled former president Donald Trump is threatening to sue publisher Simon & Schuster and author and former New York criminal prosecutor Mark Pomerantz over the forthcoming publication of People vs. Donald Trump: An Inside Account.

According to S&S press materials, Pomerantz, who investigated Donald Trump and the Trump Organization, purports to explain in his book why Trump should be prosecuted for financial crimes—and why he believes that prosecution hasn’t yet happened. Pomerantz resigned last February, reportedly after Manhattan DA Alvin Bragg was said to have put the brakes on an imminent criminal prosecution of the former president.

But in a letter this week, shared with PW, Trump attorney Joe Tacopina warns Pomerantz and S&S officials against publishing a book that repeats allegedly “false” and “defamatory” statements.

“I strongly admonish you to take these next words seriously: If you publish such a book and continue making defamatory statements against my client, my office will aggressively pursue all legal remedies against you and your book publisher, Simon & Schuster,” Tacopina writes. “Trust me, I will zealously use every possible legal resource to punish you and your publisher for the incredible financial harm that you have caused my clients to suffer.”

In a statement issued late Monday evening, Pomerantz dismissed Trump’s threat to sue.

“If the former president should sue me, I will defend that litigation,” Pomerantz said, in a statement issued through S&S. “I stand by the statements I have made previously, and those contained in my forthcoming book.”

The threat marks the latest attempt by Trump to stop publication of a book that criticizes him—which so far have only served to sell books. In 2018, while president, Trump attorneys sent a cease-and-desist letter to publisher Henry Holt and author Michael Wolff over his book of Fire and Fury: Inside the Trump White House. The media attention propelled the book to the top of the bestseller list.

More recently, Trump unsuccessfully sued Simon & Schuster and his niece, author Mary Trump, in New York state court seeking to block publication of her memoir Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man. The book would go on to sell more than a million copies.

Link to the rest at Publisher’s Weekly

Imitation Is The Best Form Of Flattery. Flattery Is Not A Defense To Copyright Infringement.

From Above the Law:

Unless you’ve been living under a law library, it would be hard to not take note of the rapid influx of AI art. Face modifying apps, extended shots of events and people that never happened that uncanny only begins to explain their weirdness, you name it. The figure of AI as artist has arrived, but is any of it legal? A small group of artists aim to find out. From Reuters:

A group of visual artists has sued artificial intelligence companies for copyright infringement, adding to a fast-emerging line of intellectual property disputes over AI-generated work.

Stability AI’s Stable Diffusion software copies billions of copyrighted images to enable Midjourney and DeviantArt’s AI to create images in those artists’ styles without permission, according to the proposed class-action lawsuit filed Friday in San Francisco federal court.

The artists’ lawyers, the Joseph Saveri Law Firm and Matthew Butterick, filed a separate proposed class action lawsuit in November against Microsoft’s GitHub Inc and its business partner OpenAI Inc for allegedly scraping copyrighted source code without permission to train AI systems.

. . . .

I’m gonna flag it for you in case your eyes glossed over it. The word there is billions. Billons. With a B. Even if the individual damages are pennies on the dollar, the aggregate of those alleged copyright infringements would be… well, I’m not that good at math, but it would put a sizeable dent in my student loan principal.

. . . .

For those not in the know, if you’ve ever seen a stock image, every one you’ve seen is probably from Getty.

Link to the rest at Above the Law

Getty Images is suing the creators of AI art tool Stable Diffusion for scraping its content

From The Verge:

Getty Images is suing Stability AI, creators of popular AI art tool Stable Diffusion, over alleged copyright violation.

In a press statement shared with The Verge, the stock photo company said it believes that Stability AI “unlawfully copied and processed millions of images protected by copyright” to train its software and that Getty Images has “commenced legal proceedings in the High Court of Justice in London” against the firm.

Getty Images CEO Craig Peters told The Verge in an interview that the company has issued Stability AI with a “letter before action” — a formal notification of impending litigation in the UK. (The company did not say whether legal proceedings would take place in the US, too.)

“The driver of that [letter] is Stability AI’s use of intellectual property of others — absent permission or consideration — to build a commercial offering of their own financial benefit,” said Peters. “We don’t believe this specific deployment of Stability’s commercial offering is covered by fair dealing in the UK or fair use in the US. The company made no outreach to Getty Images to utilize our or our contributors’ material so we’re taking an action to protect our and our contributors’ intellectual property rights.”

When contacted by The Verge, a press representative for Stability AI, Angela Pontarolo, said the “Stability AI team has not received information about this lawsuit, so we cannot comment.”

The lawsuit marks an escalation in the developing legal battle between AI firms and content creators for credit, profit, and the future direction of the creative industries. AI art tools like Stable Diffusion rely on human-created images for training data, which companies scrape from the web, often without their creators’ knowledge or consent. AI firms claim this practice is covered by laws like the US fair use doctrine, but many rights holders disagree and say it constitutes copyright violation. Legal experts are divided on the issue but agree that such questions will have to be decided for certain in the courts. (This past weekend, a trio of artists launched the first major lawsuit against AI firms, including Stability AI itself.)

Getty Images CEO Peters compares the current legal landscape in the generative AI scene to the early days of digital music, where companies like Napster offered popular but illegal services before new deals were struck with license holders like music labels.

“We think similarly these generative models need to address the intellectual property rights of others, that’s the crux of it,” said Peters. “And we’re taking this action to get clarity.” 

Although the creators of some AI image tools (like OpenAI) refuse to disclose the data used to create their models, Stable Diffusion’s training dataset is open source. An independent analysis of the dataset found that Getty Images and other stock image sites constitute a large portion of its contents, and evidence of Getty Images’ presence can be seen in the AI software’s tendency to recreate the company’s watermark.

Although companies like Stability AI deny any legal or ethical hazard in creating their systems, they have still begun making concessions to content creators. Stability AI says artists will be able to opt-out of the next version of Stable Diffusion, for example. In a recent tweet about the company’s training datasets, Stability AI CEO Emad Mostaque said “I believe they are ethically, morally and legally sourced and used,” before adding: “Some folks disagree so we are doing opt out and alternate datasets/models that are fully cc.”

The full details of Getty Images’ lawsuit have not yet been made public, but Peters said that charges include copyright violation and violation of the site’s terms of service (in particular, web scraping). Andres Guadamuz, an academic specializing in AI and intellectual property law at the UK’s University of Sussex, told The Verge it seemed like the case would have “more merit” than other existing AI lawsuits, but that “the devil will be in the details.”

Link to the rest at The Verge

PG’s understanding is that AI art generators don’t keep any copies of the images they use. His understanding is that an image is quickly analyzed and a mathematical hash is created.

If PG’s understanding is correct, Stability AI used an Open Source dataset and, perhaps, kept a copy of the original photos/artwork on its servers afterwards.

If this is the case, PG thinks it was stupidity on the part of management at Stability AI to keep a copy after creating hashes from it. While he thinks it would still qualify as fair use under US patent law, keeping a literal copy of the photos after processing them strengthens Getty’s case.

Getty is suing in the UK because Stability AI is located there, so PG’s comments, based on his understanding of US copyright laws may not cover differences between UK and US laws governing this matter. He will note that both the UK and US have entered into the two major international copyright agreements – The Universal Copyright Convention (UCC), adopted in Geneva, Switzerland, in 1952, and The Berne Convention for the Protection of Literary and Artistic Works (Berne), in 1882.

Getty is also aggressive in suing for improper use of photos in their collection, even if the photos are in the public domain and, thus, not protected by copyright. See here for one relatively recent example. And here for another take on the same facts.

PG is going to be following this lawsuit as it progresses and would welcome hearing from visitors to TPV if they find any interesting pieces discussing the dispute – Contact PG at the top of TPV will let you send him an email.

The Tudor Roots of Modern Billionaires’ Philanthropy

From Smithsonian Magazine:

More than 230 of the world’s wealthiest people, including Elon Musk, Bill Gates and Warren Buffett, have promised to give at least half of their fortunes to charity within their lifetimes or in their wills by signing the Giving Pledge. Some of the most affluent, including Jeff Bezos (who hadn’t signed the Giving Pledge as of early 2023) and his ex-wife MacKenzie Scott (who did sign the pledge after their divorce in 2019) have declared that they will go further by giving most of their fortunes to charity before they die.

This movement stands in contrast to practices of many of the philanthropists of the late 19th and early 20th centuries. Industrial titans like oil baron John D. Rockefeller, automotive entrepreneur Henry Ford and steel magnate Andrew Carnegie established massive foundations that to this day have big pots of money at their disposal despite decades of charitable grantmaking. This kind of control over funds after death is usually illegal because of a “you can’t take it with you” legal doctrine that originated in England 500 years ago.

Known as the Rule Against Perpetuities, it holds that control over property must cease within 21 years of a death. But there is a loophole in that rule for money given to charities, which theoretically can flow forever. Without it, many of the largest American and British foundations would have closed their doors after disbursing all their funds long ago.

As a lawyer and researcher who studies nonprofit law and history, I wondered why American donors get to give from the grave.

Henry VIII had his eye on property

In a recent working paper that I wrote with my colleague Angela Eikenberry and Kenya Love, a graduate student, we explained that this debate goes back to the court of Tudor monarch Henry VIII.

The Rule Against Perpetuities developed in response to political upheaval in the 1530s. The old feudal law made it almost impossible for most properties to be sold, foreclosed upon or have their ownership changed in any way.

At the time, a small number of people and the Catholic Church controlled most of the wealth in England. Henry wanted to end this practice because it was difficult to tax property that never transferred, and property owners were mostly unaccountable to England’s monarchy. This encouraged fraud and led to a consolidation of wealth that threatened the king’s power.

As he sought to sever England’s ties to the Catholic Church, Henry had one eye on changing religious doctrine so he could divorce his first wife, Catherine of Aragon, and the other on all the property that would become available when he booted out the church.

After splitting with the church and securing his divorce, he enacted a new property system giving the British monarchy more power over wealth. Henry then used that power to seize property. Most of the property the king took first belonged to the church, but all property interests were more vulnerable under the new law.

Henry’s power grab angered the wealthy gentry, who launched a violent uprising known as the Pilgrimage of Grace.

After quelling that upheaval, Henry compromised by allowing the transfer of property from one generation to the next. But he didn’t let people tell others how to use their property after they died. The courts later developed the Rule Against Perpetuities to allow people to transfer property to their children when they turned 21 years old.

At the same time, wealthy Englishmen were encouraged to give large sums of money and property to help the poor. Some of these funds had strings attached for longer than the 21 years.

Elizabeth I codified the rule

Elizabeth I, Henry’s daughter with his ill-fated wife Anne Boleyn, became queen in 1558, after the deaths of her siblings Edward VI and Mary I. She used her reign to codify that previously informal charitable exception. By then it was the 1590s, a tough time for England, due to two wars, a pandemic, inflation and famine. Elizabeth needed to prevent unrest without raising taxes even further than she already had.

Elizabeth’s solution was a new law decreed in 1601. Known as the Statute of Charitable Uses, it encouraged the wealthy to make big charitable donations and gave courts the power to enforce the terms of the gifts.

The monarchy believed that partnering with charities would ease the burdens of the state to aid the poor.

This concept remains popular today, especially among conservatives in the United States and United Kingdom.

Link to the rest at Smithsonian Magazine

PG says the Rule Against Perpetuities provides fertile ground for law school examinations.

It also forms a basis for a great many colorful hypothetical question.

He will limit himself to one: The Fertile Octogenarian:

From Wikipedia:

The fertile octogenarian is a fictitious character that comes up when applying the rule against perpetuities. The rule presumes that anyone, even an octogenarian (i.e., someone between 80 and 90 years of age) can parent a child, regardless of sex or health. For instance, suppose that a will devises a piece of land known as Blackacre “to A for her life, and then to the first of A’s children to reach 25 years of age.” A is, at the time the will is probated, an 85-year-old woman. In applying the rule against perpetuities, an imaginative lawyer will argue (and a court must accept under the common law rule itself) that A could have a child in her 86th year and then in her 87th year all of A’s other children could die, then in her 88th year A herself could die. Because the interest will not vest until her new child reaches 25 years of age, which cannot happen until more than 21 years after A and her other children (together who form the “lives in being” to which the rule refers) have all died, the rule against perpetuities makes the entire gift “to the first of A’s children to reach 25 years of age” void. A will hold Blackacre for life, and then the property will revert to the person whose will transferred it to A in the first place. (Actually, it will go to that person’s estate, since the will was probated only after his death.)

While it is true that there is often no statutory maximum age limit to perform an adoption, and adopted children are often treated the same as natural children, so an 86-year-old woman who adopts a newborn child is legally in the same position as an 86-year-old woman who gives birth, the fertile octogenarian rule predates the laws allowing legal adoption.

The legal fiction of the fertile octogenarian assumes that a living person, regardless of sex, age, or physical condition, will always be capable of having more children, thus allowing an interest to vest 21 years after all the lives in being at the time of the grant are dead. Couples have been known to marry in their late eighties.

In certain places this assumption will be limited to a fixed age set by statute. Furthermore, many jurisdictions have discarded old common-law fictions such as the “fertile octogenarian.”

Link to the rest at Wikipedia

PG will note that Blackacre is a term he has only heard in law school classrooms.

“Controlled Digital Lending”: Could Canadian Universities Find Themselves Out on a Limb?

From Hugh Stephens Blog:

In my year end blog post looking back at significant developments for copyright and creators in 2022 and looking forward to topics that will be at the top of the agenda in 2023, I identified questions over the legality of a contrived and unproven concept, so-called “Controlled Digital Lending” (CDL), as one of the big issues likely to be clarified this year.

Back in June 2020, four major publishers (Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House), all members of the American Association of Publishers (AAP) filed suit against the Internet Archive for “Systematic Mass Scanning and Distribution of Literary Works”. The Internet Archive (IA), an organization that brands itself as “a non-profit library of millions of free books, movies, software, music, websites, and more”, provides a number of services including archiving the internet through its “Wayback Machine”, archiving television programs and audio recordings, and digitizing documents and books, both those in the public domain and others still protected by copyright.  Although registered as a US non-profit, it was founded and still led by Brewster Kahle, a multimillionaire entrepreneur and digital “guru”.

The publishers’ lawsuit was provoked by the IA’s decision to create a self-described “National Emergency Library” in March 2020, during the peak of the COVID pandemic. The Emergency Library expanded the untested theory of Controlled Digital Lending (CDL), championed by the Archive, by eliminating even the pretence of limits on the numbers of digital copies of books that could be borrowed, in effect eliminating all wait times. As I noted in an earlier blog post (“Are Authors the Enemies of Authors and Publishers?”), COVID was the pretext used by the Archive for pushing the envelope on CDL. Under the IA’s interpretation of CDL, a digital scan of a book can be substituted for the original work by a lending library as long as the library holds the requisite number of physical copies. As is the case with legitimate lending of licensed e-books, there is no need for the borrower to physically collect the work; it is all done digitally including terminating the loan once the book is due.

The issue of scanning a book without authorization in order to provide a substitutable digital version is clearly at odds with the law, especially when it comes to US case law which has been very clear and consistent on this point. As authors and publishers point out, it is a form of copying that destroys the licensing market for e-books. Despite this obvious fact, this has not stopped advocates, like the Internet Archive, from claiming that the practice is somehow fair use under US law. Until COVID hit, the Archive purported to follow what it characterized as normal lending rules by allowing only as many digital copies into circulation as it physically held in its inventory, with a digital copy having to be “returned” before a new copy could be loaned out. However, in reality it exercised no actual controls, simply asserting that it was following the correct “own to loan” ratio. Then, with the arrival of COVID, the Archive dropped all pretence of controls and announced that it was suspending the normal practice of maintaining a wait list and would allow unlimited digital copies to go into circulation.

While a few initially misguidedly lauded the Archive for taking measures to assist consumers who were self-isolating because of the pandemic, it didn’t take long for authors and publishers to push back, pointing out that this unilateral move was a case of giving away someone else’s property without consultation or permission. Although the possibility of litigation had been simmering for some time, the IA’s declaration of the “National Emergency Library” was the precipitating event leading to the filing of suit by the publishers. The IA then ended the Emergency Library program prematurely and Kahle appealed to the publishers to settle the dispute in the boardroom rather than the courtroom. The hypocrisy of this appeal was not lost on authors and publishers who had been trying for years to engage the Archive in meaningful discussions. Both sides moved for summary judgment, and those motions are currently pending in front of the judge.

Link to the rest at Hugh Stephens Blog and thanks to R. and others for the tip.

PG recalls this type of “controlled digital lending” theory having appeared in various guises on past occasions.

As the OP suggests, it won’t work.

Fundamental copyright law requires the author’s approval before anyone can make a copy of the author’s creation, be it words or paintings or anything else.

When a library purchases a physical book and lends it to someone, the library has entrusted its copy to one of its patrons. If the patron doesn’t return the book or loses it or if the patron’s dog eats the book, if the library wishes to allow other patrons to borrow the book, the library’s only legal option is to purchase another physical book from the author or publisher or locate a helpful friend of the library who has purchased a copy of the book and ask if the helpful friend will donate her/his/their physical copy of the book to the library.

Every digital lending scheme PG has examined involves making a copy of the book each time someone wishes to read it. If the library scans one of its physical books, it’s making a copy without permission. It doesn’t matter whether the library destroys the physical book after scanning it. The library has still made a copy.

If a library acquires an ebook, absent permission from the owner of the ebook’s copyright, the library can’t make a digital loan to a patron via an electronic copy while still maintaining a copy of the ebook on the library’s computer system or anywhere else.

Just because electronic copying is very simple to do and happens trillions of times per day on computers around the world doesn’t mean that making an electronic copy of a bunch of organized electrons that are protected by copyright law is not a violation of copyright law.

Please note that that the copyright law includes an exclusion for Fair Use of the copyrighted material. Fair Use does not constitute a violation of copyright law.

Here’s a reasonable general definition of Fair Use from The Stanford Libraries:

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an infringement.

Of course, as with all laws, Fair Use contains more than a few gray areas. However, making a complete copy of a creative work and lending, selling, etc., the copy to one or more others is not protected under the Fair Use exception to general copyright law.

(Personal note – PG believes all of his excerpts of copyright-protected material in TPV constitute fair use. He asks himself if that is the case for at least one or more items he posts each week. His judgement has been questioned on only one occasion, many years ago, but the questioner stopped complaining after PG sent his analysis of fair use for the challenged post.)

Parody under copyright and trade mark law: key guidance from Zorro .. and the Italian Supreme Court

From IPKat:

Last week, the Italian Supreme Court issued an important – if not truly seminal – judgment on the interplay between IP and freedom of expression (decision 38165/2022, CO.GE.DI. International – Compagnia Generale Distribuzione s.p.a. v Zorro Productions Inc.).

. . . .

Back in 2007, US company Zorro Productions sued CO.GE.DI. over a TV and radio advertisement which the latter had commissioned on behalf of bottled water brand Brio Blu. Said advertisement featured actor Max Tortora dressed up as popular character Zorro.

Zorro Productions claimed that it owned copyright and several trade marks over the character of Zorro and that the advertisement inter alia infringed its rights under both regimes.

Further to a victory for Zorro Productions at first instance, the Court of Appeal of Rome sided with CO.GE.DI., holding that the character of Zorro had fallen in the public domain.

In 2017, the Italian Supreme Court rendered a first judgment, holding that Zorro would be still protected by copyright, as the 70-year post mortem auctoris term available under Italian law should also apply to foreign (in this case: American) authors. The Supreme Court thus sent the case back to the Court of Appeal for a new assessment.

In 2018, the Court of Appeal ruled that Zorro is a protected fictional character and its alleged parody in the advertisement would be prohibited given that:

  • Italy did not expressly transpose Article 5(3)(k) when it implemented the InfoSoc Directive into its legal system; and
  • A parody requires in any case a creative re-elaboration of an earlier work.

In all this, the Court of Appeal held that no trade mark infringement had occurred, since the reference to Zorro had been done without any “distinctive intent” (intento distintivo), that is: the use of the sign had not been undertaken as a trade mark.

At this point, a further appeal to the Italian Supreme Court could not but follow.

Parody under copyright

Insofar as the copyright status of Zorro is concerned, the Supreme Court noted that – under Italian law – the very protectability of characters under copyright is a settled (pacifica) issue: both courts and scholars agree that protection is available irrespective of the copyright status of the works in which they appear.

Turning to parody, the reasoning of the Supreme Court is enlightening and can be summarized as follows:

  • A parody does not need to be a creative re-elaboration of an existing work since – by its very nature – it implies an “unavoidable parasitic character” (ineliminabile carattere di parassitismo). A parody is a work that is autonomous from the earlier one because it is characterized by a different spirit, something that the court referred to as a “conceptual overthrow” (rovesciamento concettuale).
  • It follows that a parody is not a derivative work like, e.g., a translation: holding otherwise is not only wrong as per the above, but is also contrary to freedom of expression and freedom of artistic expression, as enshrined in – respectively – Articles 21 and 33 of the Italian Constitution.
  • It is true that Italy did not specifically transpose Article 5(3)(k) of the InfoSoc Directive, but the reason of all that is that the Italian legal system already allowed what is covered by that provision.
  • More specifically, a parody is a type of quotation for purposes of criticism or review, in accordance with Article 70(1) of the Italian Copyright Act. The right to criticize and review can be exercised in different ways, including by means of a parody.
  • Article 5(3)(k) of the InfoSoc Directive is consistent with this interpretation, and the CJEU Deckmyn decision [Katposts here] demonstrates that. The fair balance mandate that the CJEU refers to is the “limitation which the parodic exploitation of a third-party work or character is subject to” (limite cui soggiace lo sfruttamento parodistico dell’opera o del personaggio altrui), also considering that the CJEU has repeatedly held that the protection of IP under Article 17(2) of the EU Charter is not absolute.
  • The three-step test is part of the fair balance mandate: the circumstance that a parody is made for profit does not rule out the very applicability of Article 70(1): what matters is not that circumstance, but rather whether the alleged parody unduly conflicts with the normal exploitation of the earlier work.

In light of all that precedes, the Supreme Court concluded that the Court of Appeal had erred in its assessment of parody under copyright, by envisaging requirements that are not to be found in the law. Hence, a new assessment will need to be conducted to determine if the advertisement at issue would satisfy the conditions above.

Link to the rest at IPKat and thanks to C. for the tip.

There are lots of links in the OP if you are interested in a deeper dive.

PG and Mrs. PG truly love Italy and have enjoyed more than one trip there. The landscapes, the ancient buildings, the art, the people – the PG’s are Italophiles through and through despite neither of them having having inherited a drop of Italian blood from any of their ancestors.

That said, the OP confirms for PG that he never wants to practice Italian law or be a party in an Italian lawsuit.

PRH CEO Markus Dohle Stepping Down, End of Year

From Publishing Perspectives:

Emphasizing that the news from Gütersloh and New York City arrives “on the best of mutual terms,” Germany’s Bertelsmann has announced today (December 9) that Markus Dohle is stepping down as worldwide CEO of Penguin Random House and as a member of Bertelsmann’s executive board. It’s being made clear that this is Dohle’s decision and that Bertelsmann regrets it.

The news will surprise many in world publishing. Dohle, 54, has come to be seen as perhaps the industry’s most energetic and expressive public advocate in the executive ranks. He refers to this himself today, referring to his “enthusiasm and passion.”

NPD Books’ Kristen McLean, familiar for her analysis to our Publishing Perspectives readers, confirms to Elizabeth A. Harris and Alexandra Alter at The New York Times that this is hardly a convenient moment for Dohle to feel he must make this move. “There are unknowns at every level,” McLean says. “There are unknowns with consumer behavior, unknowns with what retailers are doing, and unknowns at the publisher level about what to invest in right now.”

Dohle’s role in the leadership of the largest trade publishing company–”a community of 325 imprints,” as he calls it, spanning many countries–has given his messages immediate attention. He has taken this seriously. He’s an outsized and welcoming personality, big enough to embrace the sheer expanse of PRH. He has leveraged his position as a bully pulpit to project an upbeat, boisterous can-do tone during some of contemporary publishing’s most sophisticated challenges.

Dohle was appointed the first CEO to lead the world’s largest trade book publishing company on July 1, 2013, when the publishing group was founded. He had become CEO of Random House in 2008.

Nihar Malaviya, currently a PRH vice-president and director of strategy and operations, is to become interim CEO at the start of the new year.

. . . .

Dohle has been outspoken about the crucial need for the freedom to publish and about book publishing’s place in the world’s democratic order, particularly in the current era of authoritarian dynamics. Demonstrating the kind of personal commitment to his work that’s one of his trademarks, he personally seeded the US$500,000 Dohle Book Defense Fund with PEN America in February amid myriad book-banning attempts in the States and in other world markets.

In October 2021, Dohle had opened Frankfurter Buchmesse’s new Frankfurt Studio facility in a live hour-long conversation with Publishing Perspectives. During our discussion, he talked about the profound value he sees in immersive, long-form reading.

“It helps you to actually see the world from other points of view,” he said, “and we know it creates empathy and human values, especially in young people. That’s what the world needs right now if we want to help defend our democracy, based on human values.”

. . . .

Professional industry attendees at this year’s 12th Sharjah Publishers Conference in the United Arab Emirates could see clearly Dohle’s bitter disappointment on November 1, the morning after Judge Florence Yu Pan’s order was made public.

Dohle, going through with a scheduled appearance at the conference, told Bodour Al Qasimi, president of the International Publishers Association‘s (IPA) onstage, that the court’s decision was “utterly wrong.” If the S&S acquisition had not been blocked by the Biden administration’s Justice Department, “Readers would have benefited from this merger because we sell our books through more retailers than anybody else in 20,000 retail locations in the US, 160,000 retail locations globally.

“Authors would have been benefiting because of more royalties, because of more sales, and their agents [would benefit], of course, too,” he said. “And ultimately, because of our synergies, we would have paid more taxes, so the taxpayer would have been benefiting. So it was good for our constituencies. And, by the way, we’ve lost some market share. So Simon & Schuster is basically refilling lost market share for us. And after the merger, we would have been less than 20 percent of the United States’ trade [book publishing] market, less than 20 percent—while Amazon is 50 percent of the retail side.”

“I am biased,” Dohle said onstage, “and I’m very disappointed.”

Link to the rest at Publishing Perspectives

PG says there is definitely a story behind this story.

Too much happy talk is the principal reason for PG’s suspicions.

As PG has opined before, he can’t imagine that PRH outside counsel having not waved a big red flag, telling their client that the acquisition would attract a great deal of antitrust attention and a legal challenge would be likely.

From Wikipedia:

Hubris (/ˈhjuːbrɪs/; from Ancient Greek ὕβρις (húbris) ‘pride, insolence, outrage’), or less frequently hybris (/ˈhaɪbrɪs/),describes a personality quality of extreme or excessive pride or dangerous overconfidence, often in combination with (or synonymous with) arrogance. The term arrogance comes from the Latin adrogare, meaning “to feel that one has a right to demand certain attitudes and behaviors from other people”. To arrogate means “to claim or seize without justification… To make undue claims to having”, or “to claim or seize without right… to ascribe or attribute without reason”. The term pretension is also associated with the term hubris, but is not synonymous with it.

According to studies, hubris, arrogance, and pretension are related to the need for victory (even if it does not always mean winning) instead of reconciliation, which “friendly” groups might promote. Hubris is usually perceived as a characteristic of an individual rather than a group, although the group the offender belongs to may suffer collateral consequences from wrongful acts. Hubris often indicates a loss of contact with reality and an overestimation of one’s own competence, accomplishments, or capabilities. The adjectival form of the noun hubris/hybris is hubristic/hybristic.

The term hubris originated in Ancient Greek, where it had several different meanings depending on the context. In legal usage, it meant assault or sexual crimes and theft of public property, and in religious usage it meant transgression against a god.

. . . .

In its modern usage, hubris denotes overconfident pride combined with arrogance. Hubris is often associated with a lack of humility. Sometimes a person’s hubris is also associated with ignorance. The accusation of hubris often implies that suffering or punishment will follow, similar to the occasional pairing of hubris and nemesis in Greek mythology. The proverb “pride goeth (goes) before destruction, a haughty spirit before a fall” (from the biblical Book of Proverbs, 16:18) is thought to sum up the modern use of hubris. Hubris is also referred to as “pride that blinds” because it often causes a committer of hubris to act in foolish ways that belie common sense. In other words, the modern definition may be thought of as, “that pride that goes just before the fall.” (annotations in the original omitted)

Link to the rest at Wikipedia

This artist is dominating AI-generated art. And he’s not happy about it.

From MIT Technology Review:

Those cool AI-generated images you’ve seen across the internet? There’s a good chance they are based on the works of Greg Rutkowski.

Rutkowski is a Polish digital artist who uses classical painting styles to create dreamy fantasy landscapes. He has made illustrations for games such as Sony’s Horizon Forbidden West, Ubisoft’s Anno, Dungeons & Dragons, and Magic: The Gathering. And he’s become a sudden hit in the new world of text-to-image AI generation.

His distinctive style is now one of the most commonly used prompts in the new open-source AI art generator Stable Diffusion, which was launched late last month. The tool, along with other popular image-generation AI models, allows anyone to create impressive images based on text prompts.

For example, type in “Wizard with sword and a glowing orb of magic fire fights a fierce dragon Greg Rutkowski,” and the system will produce something that looks not a million miles away from works in Rutkowski’s style.

But these open-source programs are built by scraping images from the internet, often without permission and proper attribution to artists. As a result, they are raising tricky questions about ethics and copyright. And artists like Rutkowski have had enough.

According to the website Lexica, which tracks over 10 million images and prompts generated by Stable Diffusion, Rutkowski’s name has been used as a prompt around 93,000 times. Some of the world’s most famous artists, such as Michelangelo, Pablo Picasso, and Leonardo da Vinci, brought up around 2,000 prompts each or less. Rutkowski’s name also features as a prompt thousands of times in the Discord of another text-to-image generator, Midjourney.

Rutkowski was initially surprised but thought it might be a good way to reach new audiences. Then he tried searching for his name to see if a piece he had worked on had been published. The online search brought back work that had his name attached to it but wasn’t his.

“It’s been just a month. What about in a year? I probably won’t be able to find my work out there because [the internet] will be flooded with AI art,” Rutkowski says. “That’s concerning.”

Stability.AI, the company that built Stable Diffusion, trained the model on the LAION-5B data set, which was compiled by the German nonprofit LAION. LAION put the data set together and narrowed it down by filtering out watermarked images and those that were not aesthetic, such as images of logos, says Andy Baio, a technologist and writer who downloaded and analyzed some of Stable Diffusion’s data. Baio analyzed 12 million of the 600 million images used to train the model and found that a large chunk of them come from third-party websites such as Pinterest and art shopping sites such as Fine Art America.

Many of Rutkowski’s artworks have been scraped from ArtStation, a website where lots of artists upload their online portfolios. His popularity as an AI prompt stems from a number of reasons.

First, his fantastical and ethereal style looks very cool. He is also prolific, and many of his illustrations are available online in high enough quality, so there are plenty of examples to choose from. An early text-to-image generator called Disco Diffusion offered Rutkowski as an example prompt.

Rutkowski has also added alt text in English when uploading his work online. These descriptions of the images are useful for people with visual impairments who use screen reader software, and they help search engines rank the images as well. This also makes them easy to scrape, and the AI model knows which images are relevant to prompts.

. . . .

Other artists besides Rutkowski have been surprised by the apparent popularity of their work in text-to-image generators—and some are now fighting back. Karla Ortiz, an illustrator based in San Francisco who found her work in Stable Diffusion’s data set, has been raising awareness about the issues around AI art and copyright.

Artists say they risk losing income as people start using AI-generated images based on copyrighted material for commercial purposes. But it’s also a lot more personal, Ortiz says, arguing that because art is so closely linked to a person, it could raise data protection and privacy problems.

“There is a coalition growing within artist industries to figure out how to tackle or mitigate this,” says Ortiz. The group is in its early days of mobilization, which could involve pushing for new policies or regulation.

Link to the rest at MIT Technology Review and thanks to R. for the tip in the comments.

PG predicts there will be more than one copyright infringement suit filed against various individuals, institutions and companies providing AI services in which an artist’s copyrighted work was used to seed the AI.

In the United States, such suits will almost certainly be filed in the federal court system since copyright is governed by federal law. Some states have laws that would seem to give exclusive rights to publish state documents to the state or those to whom the state has given permission to make and sell copies of state documents, but trying to protect a creative work from republication under anything other than pursuant to federal copyright laws and decisions is generally regarded as a fool’s errand.

One thing that judges do when faced with a novel question is to draw from similar situations that have occurred previously.

As one crude example, if an individual uses a computer and a software program created by third parties to make an exact copy of of the text of a copyright-protected book, the manufacturer of the computer or the company that created and sold the word processing program used to make a copy of the book will not be liable for copyright infringement because they only provided tools and the author used the tools in the manner the author chose.

AI art programs require a prompt to create anything images. The OP mentions the use of an artists name in an AI prompt as one way of generating an image.

However, that decision is not made by the creators/owners of the AI program, but rather by the user. The creators of the AI program ran a huge number of images by an an enormous number of artists through the program’s processor. Is it a violation of copyright law to link an artist’s name to a painting the artist created? PG doesn’t think so.

As a matter of fact, using Mr. Rutkowski’s work without attribution would also be an offense against the creator.

PG doesn’t see the creation of works “inspired by” an artist constituting copyright infringement when they aren’t copies of what the artist created or closely resembling what an artist created. PG doesn’t believe that an artistic style is protected by copyright.

If PG’s understanding of the way AI art programs work is to deconstruct the original copy of the image into its component parts and assign some sort of marker to the parts such that a prompt for a large building in the style of the British Museum won’t generate an image dominated by a dragon.

PG just created a prompt, “Windsor Castle sailing on the ocean” and ran it through an AI art generator. Here’s what he got.

Next, PG modified his prompt to read “Windsor Castle sailing on the ocean Greg Rutkowski” and this is what he got:

For one last experiment PG created another prompt with a different artist, “Windsor Castle sailing on the ocean Andy Warhol” and here’s what showed up.

PG is not an art expert, but he doesn’t think any of his AI illustrations will put either Mr. Rutkowski or Mr. Warhol out of business.

DeviantArt upsets artists with its new AI art generator, DreamUp

From Ars Technica:

On Friday, the online art community DeviantArt announced DreamUp, an AI-powered text-to-image generator service powered by Stable Diffusion. Simultaneously, DeviantArt launched an initiative that ostensibly lets artists opt out of AI image training but also made everyone’s art opt in by default, which angered many members.

DreamUp creates novel AI-generated art based on text prompts. Due to its Stable Diffusion roots, DreamUp learned how to generate images by analyzing hundreds of millions of images scraped off sites like DeviantArt and collected into LAION datasets without artists’ permission, a potential irony that some DeviantArt members find problematic.

As we’ve reported frequently on Ars in the past, Stable Diffusion’s web-scraping nature ignited a huge debate earlier this year among artists that challenge the ethics of AI-generated artwork. Some art communities have taken hard stances against any AI-generated images, banning them completely.

Perhaps anticipating a backlash, DeviantArt is making overtures to pacify artists who might be upset about their work being used to train AI image generators. The site is providing a special “noai” flag that artists can check in their image settings to opt out of third-party image datasets. (Whether third-party image scrapers will honor this flag, however, remains to be seen.)

. . . .

Also, DeviantArt will let artists opt out of letting their images train DreamUp in the future, but each artist must fill out a form that requires human review first. This policy has led to significant pushback among DeviantArt members, some of whom have threatened to delete all of their work and deactivate their accounts.

DeviantArt’s DreamUp information page also takes a defensive tone, stating that DeviantArt did not consent to third-party AI image models (such as Stable Diffusion) that scraped their site to make their models work. And further down the page, the site attempts to debunk common misconceptions about how AI image synthesis works.

Link to the rest at Ars Technica

For those not familiar with DeviantArt, it’s an artists’ social network. It’s also a place for those who might might want to commission an artist to produce something like a cover design for a fantasy or science fiction novel.

PG’s understanding is that a great many artists who create images with computers/tablets+computers, etc., show some of their work in order to attract visitors to their websites. Of course, everything an artist puts up on Deviant Art is a digital image.

Based on the Ars Technica article, it sounds like DeviantArt really screwed up the launch of its AI Art tool.

Of course, standard legal advice is that a creator should read all contracts, terms and conditions, terms of use, terms of service, etc., prior to uploading any creation to a website or other online destination.

One of the things a creator may find in the T’s&C’s is a provision that says the site owner can change the T’s&C’s at any time without notifying the creator in advance.

Here are a few sample provisions from Facebook’s Privacy Policy which is referenced in Facebook’s Terms of Service for your edification and enjoyment:

On our Products, you can send messages, take photos and videos, buy or sell things and much more. We call all of the things you can do on our Products “activity.” We collect your activity across our Products and information you provide, such as:

  • Content you create, like posts, comments or audio
  • Content you provide through our camera feature or your camera roll settings, or through our voice-enabled features. Learn more about what we collect from these features, and how we use information from the camera for masks, filters, avatars and effects.
  • Messages you send and receive, including their content, subject to applicable law. We can’t see the content of end-to-end encrypted messages unless users report them to us for review. Learn more.
  • Metadata about content and messages, subject to applicable law
  • Types of content you view or interact with, and how you interact with it
  • Apps and features you use, and what actions you take in them. See examples.
  • Purchases or other transactions you make, including credit card information. Learn more.
  • Hashtags you use
  • The time, frequency and duration of your activities on our Products

Information with special protections

You might choose to provide information about your religious views, political views, who you are “interested in” (which could reveal your sexual orientation) or your health in your Facebook profile fields or life events. This and other information (such as racial or ethnic origin, philosophical beliefs or trade union membership) could have special protections under the laws of your country.

(PG Note: You have to click to a separate page to continue reading the Terms of Service)

(The Facebook Docs continue.)

Friends, followers and other connections

Information we collect about your friends, followers and other connections

We collect information about friends, followers, groups, accounts, Facebook Pages and other users and communities you’re connected to and interact with. This includes how you interact with them across our Products and which ones you interact with the most.

Information we collect about contacts

We also collect your contacts’ information, such as their name and email address or phone number, if you choose to upload or import it from a device, like by syncing an address book.

If you don’t use Meta Products, or use them without an account, your information might still be collected. Learn more about how Meta uses contact information uploaded by account holders.

App, browser and device information

We collect and receive information from and about the different devices you use and how you use them.

Device information we collect and receive includes:

  • The device and software you’re using, and other device characteristics. See examples.
  • What you’re doing on your device, like whether our app is in the foreground or if your mouse is moving (which can help tell humans from bots)
  • Identifiers that tell your device apart from other users’, including Family Device IDs. See examples.
  • Signals from your device. See examples.
  • Information you’ve shared with us through device settings, like GPS location, camera access, photos and related metadata
  • Information about the network you connect your device to, including your IP address. See more examples.
  • Information about our Products’ performance on your device. Learn more.
  • Information from cookies and similar technologies.

Learn how to upload and delete contacts on Facebook and Messenger, or how to connect your device’s contact list on Instagram.

Information we collect or infer about you based on others’ activity

We collect information about you based on others’ activity. See some examples.

We also infer things about you based on others’ activity. For example:

  • We may suggest a friend to you through Facebook’s People You May Know feature if you both appear on a contact list that someone uploads.
  • We take into account whether your friends belong to a group when we suggest you join it.

Information from Partners, vendors and third parties

What kinds of information do we collect or receive?

We collect and receive information from Partners, measurement vendors and third parties about a variety of your information and activities on and off our Products.

Here are some examples of information we receive about you:

  • Your device information
  • Websites you visit and cookie data, like through Social Plugins or the Meta Pixel
  • Apps you use
  • Games you play
  • Purchases and transactions you make
  • Your demographics, like your education level
  • The ads you see and how you interact with them
  • How you use our Partners’ products and services, online or in person

Partners also share information like your email address, cookies and advertising device ID with us. This helps us match your activities with your account, if you have one.

We receive this information whether or not you’re logged in or have an account on our Products. Learn more about how we connect information from Partners to your account.

Partners also share with us their communications with you if they instruct us to provide services to their business, like helping them manage their communications. To learn how a business processes or shares your information, read their privacy policy or contact them directly.

Off-Facebook activity

How do we collect or receive this information from partners?

Partners use our Business Tools, integrations and Meta Audience Network technologies to share information with us.

These Partners collect your information when you visit their site or app or use their services, or through other businesses or organizations they work with. We require Partners to have the right to collect, use and share your information before giving it to us.

Lawyer PG notes all the links to other places sprinkled through Facebook’s TOS. Each of the links includes yet more information that is part of the TOS. While PG didn’t click and read what was to be found in each of the links in the Mother TOS, PG will note that the links can include information and definitions that changes the meanings Mother TOS substantially.

PG doesn’t know whether Facebook’s Terms of Service as a whole are great, sorta-great, somewhere-in-the-middle, sorta terrible or terrible because he swore off of Facebook a long time ago. He has more than one Facebook account that contains information that has nothing to do with PG-in-the-flesh if he finds out about something Facebook is doing that may be of interest to PG or visitors to TPV.

PG hasn’t read Deviant Arts’ TOU, TOS, etc., but these are some of the concerns that artists who use Deviant Arts as a marketing platform are likely thinking about at the moment.

This reminds PG that he hasn’t taken a look at KDP’s Terms of Use for awhile. He thinks he has copies of such documents from some earlier exploration of them, so he may check out the latest and see what Zon’s lawyers have altered, likely as a result of some disaster, minor or major, that transpired under an earlier TOU.

This will take PG awhile to finish, so don’t hold your breath waiting for it.

Can U.S. Supreme Court Justices Publish Books and Receive Advances/Royalties?

An interesting question was asked in the comments to PG’s previous post about Penguin Random House publishing a book by Associate Supreme Court Justice Amy Coney Barrett.

Specifically, the question was whether such a commercial arrangement violated what is commonly known as The Emoluments Clause in the Constitution of the United States. Here’s how that clause reads:

Article I  Legislative Branch

  • Clause 8 Titles of Nobility and Foreign Emoluments
  • No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

From Constitution Annotated:

Article I, Section 9, Clause 8:

This provision encompasses two distinct commands. The first half, sometimes called the federal Title of Nobility Clause,1 limits the power of the United States by prohibiting it from granting any title of Nobility. The second half, often referred to as the Foreign Emoluments Clause, limits the actions of certain federal officers by prohibiting them from accepting any present, Emolument, Office, or Title, of any kind whatever from a foreign state, without the consent of Congress.

For most of their history, neither the Title of Nobility Clause nor the Foreign Emoluments Clause have been much discussed or substantively examined by the courts. The meaning and scope of the Foreign Emoluments Clause have been examined in opinions from the Department of Justice’s Office of Legal Counsel and the Comptroller General of the United States concerning the obligations of federal officers with respect to gifts, salaries, awards, and other potential emoluments from foreign sources. During the administration of President Donald Trump, the lower federal courts for the first time issued substantive—but often conflicting—decisions interpreting the Foreign Emoluments Clause.

. . . .

The Foreign Emoluments Clause’s basic purpose is to prevent corruption and limit foreign influence on federal officers. At the Constitutional Convention, Charles Pinckney of South Carolina introduced the language that became the Foreign Emoluments Clause based on the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence.1 The Convention approved the Clause unanimously without noted debate.

During the ratification debates, Edmund Randolph of Virginia, a key figure at the Convention, explained that the Foreign Emoluments Clause was intended to prevent corruption by prohibit[ing] any one in office from receiving or holding any emoluments from foreign states.

The Foreign Emoluments Clause reflected the Framers’ experience with the then-customary European practice of giving gifts to foreign diplomats.

Following the example of the Dutch Republic, which prohibited its ministers from receiving foreign gifts in 1651, the Articles of Confederation provided: any person holding any office of profit or trust under the United States, or any of them shall not accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state. The Foreign Emoluments Clause largely tracks this language from the Articles, although there are some differences.

During the Articles period, American diplomats struggled with how to balance their legal obligations and desire to avoid the appearance of corruption, against prevailing European norms and the diplomats’ wish to not offend their host country.

A well-known example from this period, which appears to have influenced the Framers of the Emoluments Clause, involved the King of France’s gift of an opulent snuff box to Benjamin Franklin. Concerned that receipt of this gift would be perceived as corrupting and violate the Articles of Confederation, Franklin sought (and received) congressional approval to keep the gift.

Following this precedent, the Foreign Emoluments Clause prohibits federal officers from accepting foreign presents, offices, titles, or emoluments, unless Congress consents.

The Foreign Emoluments Clause thus provides a role for Congress in determining the propriety of foreign emoluments. Under this authority, Congress has in the past provided consent to the receipt of particular presents, emoluments, and decorations through public or private bills, or by enacting general rules governing the receipt of gifts by federal officers from foreign governments. For example, in 1966, Congress enacted the Foreign Gifts and Decorations Act, which provided general congressional consent for foreign gifts of minimal value, as well as conditional authorization for acceptance of gifts on behalf of the United States in some cases.

Several Presidents in the nineteenth century—such as Andrew Jackson, Martin Van Buren, John Tyler, and Benjamin Harrison—notified Congress of foreign presents they received, and either placed the gifts at Congress’s disposal or obtained consent for their acceptance. Other nineteenth century Presidents treated presents they received as gifts to the United States, rather than as personal gifts. Thus, in one instance, President Lincoln accepted a foreign gift on behalf of the United States and then deposited it with the Department of State. In the twentieth century, some Presidents sought the advice of the Department of Justice’s Office of Legal Counsel on whether acceptance of particular honors or benefits would violate the Emoluments Clauses.

Link to the rest at Constitution Annotated

Here’s what SCOTUSBLOG says on the topic with respect to Supreme Court Justices writing books for publication:

In December 1833, the American Monthly Review commented on a newly published book by Joseph Story. By that time the fifty-four-year-old Supreme Court Justice had written or edited some twelve books. These works included a treatise on bills of exchange, a treatise on pleading, yet another on pleading and assumpsit, commentaries on the law of bailments, a biography, and even a book of poetry titled The Power of Solitude: A Poem in Two Parts. And he had a new work, a three-volume set with a long title: Commentaries on the Constitution of the United States; With a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Of this book, the American Monthly reviewer wrote:

[T]he work is a rare union of patience, brilliancy, and acuteness, and . . . [contains] all the learning on the Constitution brought down to the latest period, so as to be invaluable to the lawyer, statesman, politician, and in fine, to every citizen who aims to have a knowledge of the great Charter under which he lives.

That review was among the first of many such laudatory reviews of a treatise that went on to become canonical in the history of American constitutional law. Before he died in 1845, Joseph Story published another twenty-one books after his Commentaries.

Story’s literary accomplishments notwithstanding, he was not the most prolific – that honor goes to Justice William O. Douglas. This son of a Scottish Presbyterian minister, and former law professor and SEC chairman, wrote fifty-one books on a wide variety of topics ranging from foreign policy to psychiatry, from corporate reorganization to environmentalism, and from stare decisis to manifest destiny.

If nothing else, Douglas was prolific. In 1958 alone, five works were published under his name, and then in 1960 and 1961 he published four different books for each of those respective years.

And then there was Justice Joseph Story, who had thirty-three books under his byline, followed by William Howard Taft, the onetime President and later Chief Justice, who published some thirty-one books.

Link to the rest at SCOTUSBLOG

PG suggests that the precedent set by Justices Joseph Story, William O. Douglas and William Howard Taft likely covers any legal or ethical issues that might apply to Justice Amy Coney Barrett when she agrees with a commercial publisher to publish a book and receive the sorts of compensation that famous people and celebrities who are not Supreme Court Justices receive.

Penguin Random House Blocked From Acquiring Rival Publisher Simon & Schuster

From The Wall Street Journal:

A federal judge on Monday blocked Penguin Random House from acquiring rival book publisher Simon & Schuster for about $2.18 billion, agreeing with the Justice Department that the planned merger would unlawfully lessen competition.

U.S. District Judge Florence Pan accepted the Justice Department’s arguments that some writers would likely be harmed if Penguin Random House, the world’s largest consumer-book publisher, was allowed to acquire another of the five largest book publishers in the U.S.

“The Court finds that the United States has shown that the effect of the proposed merger may be substantially to lessen competition in the market for the U.S. publishing rights to anticipated top-selling books,” Judge Pan wrote in a two-page order.

The ruling, which follows an August trial in Washington, D.C., provided a long-awaited court victory for Biden-era antitrust enforcers who had lost a series of recent cases after pledging to take a more aggressive approach against corporate deal making, especially in industries that have become more consolidated.

The losses, including in the healthcare and agriculture industries, had served as a reminder that much of the administration’s antitrust agenda is dependent on persuading the federal judiciary. Justice Department officials were looking to the publishing case as a chance to build fresh, favorable court precedent.

. . . .

Assistant Attorney General Jonathan Kanter, the Justice Department’s top antitrust official, said the publishing merger would have decreased author compensation and “diminished the breadth, depth and diversity of our stories and ideas.”

Link to the rest at The Wall Street Journal

The Onion tells the Supreme Court – seriously – that satire is no laughing matter

From CNN:

The Onion – a publication best known for its tongue-in-cheek, satirical postings on politics and world events – has taken the very serious step of filing an amicus brief before the Supreme Court.

It is wading into legal advocacy by asking the high court to hear a case about an Ohio man who was arrested and later acquitted for creating a fake Facebook page that looked nearly identical to a local police department’s site.

“Americans can be put in jail for poking fun at the government? This was a surprise to America’s Finest News Source and an uncomfortable learning experience for its editorial team,” the site’s lawyers wrote.

Indeed, The Onion said the headlines surrounding this case seemed like they were ripped off the front pages of its own publication.

The Onion’s amicus brief is itself written in a very tongue-in-cheek, satirical way, though its ultimate aim is genuine – to convince the Supreme Court to take up the case involving free speech and qualified immunity, a legal doctrine that largely shields law enforcement officers from constitutional claims and one that the justices have largely avoided questioning in recent cases.

“The Onion cannot stand idly by in the face of a ruling that threatens to disembowel a form of rhetoric that has existed for millennia, that is particularly potent in the realm of political debate, and that, purely incidentally, forms the basis of The Onion’s writers’ paychecks,” the brief says.

The man at the center of the case, Anthony Novak, was arrested in 2016 after he launched the Facebook page that mirrored the Parma Ohio Police Department’s official Facebook page. Police accused Novak of posting derogatory and inflammatory information under the guise of real officials from the police department, complete with fake job postings accompanied by notifications that the department discouraged minorities from applying.

Novak was charged with one felony count of disrupting public services, but was later acquitted at trial.

Novak’s attempts to sue the police department for violating his free speech rights were most recently stopped by the Sixth US Circuit Court of Appeals, where a three-judge panel ruled in April that because officers there reasonably believed they were acting within the bounds of the law, Novak could not continue with his lawsuit against them.

But the panel of judges still was critical of the actions of the police officials.

“Granting the officers qualified immunity does not mean their actions were justified or should be condoned,” the appeals court wrote. “Indeed, it is cases like these when government officials have particular obligation to act reasonably. Was Novak’s Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak’s and the government’s time? We have our doubts.”

Link to the rest at CNN

PG can’t believe that the local Ohio city attorney actually pursued a felony charge in this matter and that local judges failed to immediately dismiss it.

PG notes that the appellate court’s opinion identifies the city’s police management personnel and the two local judges by name, which is not necessary for its written decision. PG suspects this may have represented a legal backhand to embarrass the individuals involved for their stupidity even if the appeals court found Mr. Novak’s claim could not be pursued.

You can read the Sixth Circuit’s full opinion here.

Supreme Court to Weigh if YouTube, Twitter, Facebook Are Liable for Users’ Content

From The Wall Street Journal:

The Supreme Court has agreed to decide whether social-media platforms can be held liable for terrorist propaganda uploaded by users, opening a new challenge to the broad legal immunity provided to internet companies by the law known as Section 230.

The court on Monday took up a set of cases in which families of terrorism victims allege Twitter, Facebook and YouTube bear some responsibility for attacks by Islamic State, based on content posted on those sites.

Section 230 of the Communications Decency Act has come under intense scrutiny from lawmakers in recent years, but this is the first time the Supreme Court has moved to weigh in on the foundational internet law.

The eventual ruling could have repercussions for businesses and internet users worldwide, said Anupam Chander, a professor at Georgetown University Law Center.

At issue are the “algorithmic processes for information dissemination that all internet platforms use,” Mr. Chander said.

The court agreed to take up Gonzalez v. Google, an appeal by the family of Nohemi Gonzalez, a young woman killed in an ISIS attack in Paris in 2015. Ms. Gonzalez’s family alleges YouTube, a subsidiary of Google owner Alphabet Inc., aided ISIS by recommending the terrorist group’s videos to users.

The court also agreed to hear a similar appeal, Twitter Inc. v. Taamneh, brought by family members of Nawras Alassaf, who was killed in an ISIS attack at an Istanbul nightclub in 2017. Mr. Alassaf’s relatives allege Twitter, Google and Facebook parent company Meta Platforms Inc. all provided material support to ISIS and are “the vehicle of choice in spreading propaganda.”

Lawyers for Google, Twitter and Facebook have said in court filings that they have made extensive efforts to remove ISIS content and that there is no direct causal link between the websites and the Paris and Istanbul attacks.

. . . .

Section 230 helped build the modern-day internet. The statute acts as a shield, saying that internet companies generally aren’t liable for harmful content user posts on their sites. Section 230 also allows companies to remove content they deem objectionable without liability, as long as they act in good faith.

In the Gonzalez case, the plaintiffs alleged Google knowingly allowed its algorithms to recommend and target ISIS recruitment videos to users, allowing the group to spread its message.

The case raises the question of whether Section 230 grants immunity for recommendations made by algorithms or if it only applies to editorial decisions—like removing content—made by representatives of internet companies.

“[W]hether Section 230 applies to these algorithm-generated recommendations is of enormous practical importance,” the family argued in their petition to the high court. “Interactive computer services constantly direct such recommendations, in one form or another, at virtually every adult and child in the United States who uses social media.”

Link to the rest at The Wall Street Journal

Amazon’s deal spree raises ‘No. 1 question’ from investors

From Yahoo Finance:

Amazon (AMZN) has telegraphed to investors and the world that deals are key to its future, but those transactions create antitrust risks — and investors are taking notice.

. . . .

Amazon has made headlines for its big-ticket dealmaking in recent months. The company acquired both subscription health care provider OneMedical (ONEM) and Roomba-maker iRobot in quick succession, for $3.9 billion and $1.7 billion respectively. However, investors have been concerned that Amazon’s deals, including the buyout of vacuum-making iRobot, are primed to face an Federal Trade Commission (FTC) challenge.

“It’s the No. 1 question asked,” Thill said. “It comes up in every investor conversation and I think, clearly, they’re not going to block a vacuum cleaner company from being bought. I don’t think they’ll have an issue there, but [antitrust scrutiny] does prevent Amazon from doing other software acquisitions and e-commerce acquisitions.”

Amazon has famously made some of the biggest deals out there in the last decade or so. In 2017, the company bought upscale grocer Whole Foods for a jaw-dropping $13.4 billion. Soon thereafter, Amazon dropped another near-billion to acquire online pharmacy PillPack. It hasn’t just been recent either — back in 2009, even in the depths of the recession, Amazon closed its deal to buy online retailer Zappos for $1.2 billion. Earlier this year, Amazon also closed its $8.6 billion acquisition of MGM.

However, major deals aren’t all that’s on the table for Amazon and other mega-cap tech companies. The innovation coming out of companies like Amazon and Alphabet-owned Google (GOOG, GOOGL) means they aren’t incentivized to exclusively focus on huge deals, according to Thill.

“There’s tons of innovation right now at Amazon and Google and others in tech, so I don’t think they necessarily need to go out and do big deals,” he said. “They’ll do smaller tuck-in deals.”

Still, it’s a question of what’s small to Amazon and which of these deals could finally push lawmakers over the edge. For example, Amazon’s iRobot buyout came under renewed scrutiny last week, when Sen. Elizabeth Warren and a group of lawmakers requested that the FTC reject the deal.

Amazon’s deals haven’t spurred federal action yet, but FTC Chair Lina Khan is a noted critic of Amazon, and her ascension has been linked to a series of her writings exploring what a breakup of the company would involve. Notably, the company has so far been subject to antitrust action at the state level. Recently, California sued Amazon, alleging that the restrictions it places on its third-party sellers are anticompetitive

. . . .

“It’s a question, it’s an overhang, it’s certainly in every investor conversation, in every meeting we go into, it’s the No. 1 question,” he said. “I think that the way they mitigate this risk is that they’ve been able to do M&A.”

Thill has a point. Though doing more deals is a risk, it’s also a safeguard. The Information has referred to it as Amazon’s “whack-a-mole” dealmaking strategy. The FTC can’t logistically challenge every single acquisition, so like Amazon, the regulator is going to need to pick its battles. While Amazon has to be careful going forward, so does the government, said Thill.

“They have to be careful… [Amazon’s] doing the right thing for their employees, their shareholders, and the ecosystem… Amazon is a huge employer, so the government also has to be careful with how much they regulate them, because they are an incredible, incredible vibrant source for the economy that’s helping many in their daily lives. So, there’s a fine balance that we have to walk and I think Amazon is doing that.”

Link to the rest at Yahoo Finance

PG notes that he hasn’t seen a whole lot of innovation in the KDP world. Indeed, he hasn’t seen much creative development in Zon’s bookselling business. An increment here and an increment there, but nothing very interesting.

Affirmative Action’s Big Win Always Had an Asterisk

From The Chronicle of Higher Education:

Ted Spencer still looks back. No one who lives through a grueling legal saga defined by questions about race, equity, and the Constitution could ever board up the windows to the past.

Spencer was director of admissions at the University of Michigan at Ann Arbor when the U.S. Supreme Court in 2003 decided two cases challenging the institution’s race-conscious admissions policies. The justices handed one plaintiff a victory in Gratz v. Bollinger. But Michigan won the day because the court’s ruling in a companion case, Grutter v. Bollinger, affirmed that colleges could continue considering applicants’ race and ethnicity as one of many factors. The landmark decision shored up the foundation on which a generation of admissions practices would stand. And many people in academe rejoiced.

But for Michigan, the celebration was fleeting: The opponents of affirmative action soon extinguished the university’s victory with a successful ballot initiative that banned the use of racial preferences throughout the state.

What Spencer sees in those momentous events is complicated: a triumph with a 10-foot-tall asterisk, a backlash presaging the lawsuits now looming over academe. This fall, the Supreme Court will hear two cases challenging the constitutionality of race-conscious admissions policies at Harvard University and the University of North Carolina at Chapel Hill. The court’s 6-3 conservative majority has been hacking down precedents such as Roe v. Wade. So there’s a good chance that it will shred Grutter, ending the longstanding use of race in admissions throughout the land.

You might dread that outcome or welcome it. Either way, Grutter matters because it invites the nation to consider what’s really at stake in the age-old debate over race-conscious admissions. It’s something more consequential than whether Becky with the Good Grades gets into her dream college. Grutter matters because it poses a fundamental question about fairness, asking us which kind of society we want to live in: one that clings to the ideal of colorblindness at all costs, or one that recognizes the ongoing struggle of integration? Because Grutter’slegacy might soon disappear into the whooshing downspout of history, it’s worth taking a look back.
Spencer, now retired, believes that many people have forgotten what the Michigan cases were all about, if they ever even knew: “I would tell colleagues, You can’t just say ‘Michigan was sued.’ You have to explain why, the background.”

His own story entwines with that background and the essential questions that Grutter poses. It’s the story of a Black man raised in the Deep South during segregation who became a leader in a field long dominated by white men.

Link to the rest at The Chronicle of Higher Education

PG notes that, while Gratz and Grutter were important affirmative action cases, the one that started it all was the US Supreme Court case titled Regents of the University of California v. Bakke, handed down in June of 1978.

The Bakke story stretches back to Brown v. Board of Education (1954) and the Civil Rights Act of 1964, which continued the process of desegregating schools and outlawed discrimination on the basis of race. Although Congress officially ended segregation, there was a reluctance to actually integrate schools, and a disparity in college-preparedness remained between races.

Here’s how The National Constitution Center describes Bakke:

The Bakke story stretches back to Brown v. Board of Education (1954) and the Civil Rights Act of 1964, which continued the process of desegregating schools and outlawed discrimination on the basis of race. Although Congress officially ended segregation, there was a reluctance to actually integrate schools, and a disparity in college-preparedness remained between races.

Thus, colleges like the University of California, Davis School of Medicine adopted policies of racial favoritism, policies designed to compensate for unfair disadvantages. Specifically, the school established a program to designate 16 of the 100 spots in each class for minority students.

Allan Bakke, a white male in his thirties, twice applied for admission at the school but was rejected, partially because of his advanced age. Bakke’s interviewer considered him “a very desirable candidate”; his GPA was comparable to other admittees and his MCAT scores were all significantly greater. Compared to the special admittees of UC Davis’s affirmative action program, he beat every student in every metric in both of his application classes.

Bakke, exasperated by the rejections, filed suit, contending that the University of California violated the equal protection guarantee of the 14th Amendment and the Civil Rights Act. Ironically, he argued, a law that was passed to promote equality was being employed for the opposite purpose.

The case rose through federal courts to reach the Supreme Court of California, which struck down the admissions policy and ordered Bakke’s admission. Shocked at the surprising judgment from a traditionally liberal court, the frustrated university requested a stay of admission. Shortly thereafter, the U.S. Supreme Court accepted the case for its October 1977 term.

National interest in the case was enormous—58 amicus briefs were filed, setting a Court record until 1989, and reflecting the many and diverse arguments on the issue.

Ultimately, the Court was mixed in its decision: six different Justices wrote opinions on the case, with Justice Lewis Powell writing the controlling opinion and virtually splitting his vote between two groups of four Justices.

Affirming the lower court, Powell and four of his colleagues determined that specific racial quotas in university admissions are unconstitutional. In Powell’s words, “The fatal flaw in … [UC’s] preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment.”

The majority argued that, by explicitly differentiating racial groups for consideration, the university violated the Constitution’s guarantee of equal protection under the law. It was unfair, they said, that minorities were eligible for 100 spots in the class when whites could only vie for 84. Thus, the Court struck down racial quotas and ordered Bakke admitted.

Yet Powell also joined the remaining four Justices in affirming the legality of a program that considered racial background as one of many holistic factors in admissions decision. In his view, such a policy did not specifically exclude anyone from admission.

Discussing a Harvard race-awareness program, Powell argued that even though “race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file … it does not insulate the individual from comparison with all other candidates for the available seats.” With each applicant considered for an array of qualities, someone like Bakke would not be “foreclosed from all consideration from [a] seat simply because he was not the right color or had the wrong surname.”

PG was just out of law school when Bakke was handed down and, when he read the decision, he had a sense he had that this decision hadn’t addressed all the issues it should have and would not stand the test of time. Basically, the Supreme Court kicked the can down the road.

Twenty-five years later, in the landmark case of Grutter v. Bollinger (2003), the Supreme Court affirmed its decision in Bakke by ruling that the University of Michigan Law School’s race-conscious admissions policy was constitutional because it did not involve the use of explicit quotas. But Bakke remains fundamental precedent on affirmative action.

Link to the rest at The National Constitution Center

When one encounters a Supreme Court decision in which “six different Justices wrote opinions,” one can be assured that the Court agreed on the outcome, but couldn’t agree exactly what legal theory or theories supported that outcome. A skeptical observer might conclude that the affirming justices knew the outcome they desired, but weren’t quite sure about how statutes and cases could be put together in a way that indicated those justices weren’t pulling a Constitutional right out of thin air.

Many reasonable people can and do agree that the Supreme Court caused a good outcome for a group of Americans that had been treated quite badly for a very long time.

Freeing them from slavery was an enormous and brutal undertaking that imposed an extremely high cost on both the North and the South. As PG has previously written, the Civil War, a war killed more Americans than were killed all the other wars in which the nation had engaged during its existence combined up to part-way through the Vietnam War, when, after over a hundred years, the death toll of American soldiers in all those other wars finally exceeded the death toll in the Civil War.

This coming November, over 50 years since the Bakke decision was handed down, the Supreme Court is scheduled to hear challenges to the consideration of race in the admissions process at Harvard and the University of North Carolina in two separate cases. More than a few court watchers think the Court will decide that what is now called affirmative action and/or diversity in college in the selection of applicants who are admitted to a college or university is unconstitutional if it is a lightly disguised version of racial discrimination against students of one or more races to favor students of another race.

One of the changes that has occurred over the past couple of decades is that affirmative action places a greater burden on applicants of Asian descent than it does on applicants who are white. To the best of PG’s recollection, admission of Asian students was not a factor considered by the Supreme Court in any of its previous major decisions on the topic of race and college admissions.

Virginia Won’t Ban Books for Obscenity—for Now

From Slate:

A Virginia state court judge dismissed the petitions against two books Tuesday, ending for now an attempt by local Republicans to rule the books obscene.

“I agree with the defense that the statute is facially invalid,” said retired judge Pamela S. Baskervill, who was assigned the case after all the local circuit court judges recused themselves. She was referring to the obscure Virginia state law that a Republican state legislator had used in his attempt to declare Maia Kobabe’s graphic memoir Gender Queer and Sarah Maas’ fantasy romance A Court of Mist and Fury “obscene for minors.”

Tim Anderson, a lawyer and Republican Virginia state delegate whose district includes Virginia Beach, argued in court that the statute, though inartfully worded, allowed a judge to rule on the books’ obscenity for a specific class of reader. (Another Republican, Tommy Altman, filed the petition; Altman recently lost his primary for a House seat in Virginia’s 2nd district.) “Even if one part of the law is deficient, it doesn’t make the entire law unconstitutional,” he argued. “Look, the General Assembly is a citizen legislature. We’re not lawmakers. Things like this happen and a law get written a confusing way.”

“But I have to interpret it!” Baskervill said from the bench. In her orders, she declared the law “unconstitutional on its face in that it authorizes a prior restraint that violates the First Amendment and the Constitution of Virginia.”

. . . .

The case—part stunt, part trial balloon—had drawn attention as a worrying salvo in the right wing’s continuing attempts to redefine obscenity to mean, as PEN’s Jonathan Friedman told me, “any mention of sexuality or other topics they find distasteful.” More than 10 lawyers appeared in court Tuesday opposing the petition—representing Maas, Kobabe, their publishers, Barnes and Noble, the ACLU, and a coalition of Virginia bookstores and literary nonprofits. In arguments, Barnes and Noble’s attorney, Bob Corn-Revere, rejected Anderson’s claims that he wasn’t trying to ban the books. “When you’re asking a court to make a ruling in criminal law that has the result of restricting the sale of a book—that’s censorship,” he said.

After Baskervill dismissed the case, I asked Eden Heilman, the legal director of the Virginia ACLU, if it didn’t seem annoying that the ruling found fault with the law, not with the operatives trying to use a bad law for bad ends. “No, we’re pleased she focused on the law,” Heilman said. “The law is the problem.” While this court decision won’t invalidate the statute—it would take the legislature, the Virginia Supreme Court, or the U.S. Supreme Court to do that—Heilman said she thought this decision would prevent other would-be litigants from attempting to use the law in the same way.

Link to the rest at Slate

PG says that any elected representative in a state legislature who says citizens who run for seats in that legislature are “not lawmakers” is a complete idiot.

They are running in such elections to become lawmakers. Voters choose them to become lawmakers. A majority of the legislators make laws, zillions of them, in every state in the US plus the federal government.

The judge who complains, “But I have to interpret it!” is also sounding a bit idiotic. That’s one of the things judges do on a regular basis – “Did Johnnie Outlaw violate Section 237 of the laws of the State of Schock?” If the answer is affirmative, the judge decides what punishment is appropriate. If the answer is negative, Johnnie goes free.

How to Use Images of Real People Without Violating Privacy and Publicity Rights

From Helen Sedwick:

Suppose you find the perfect image for your book cover on the internet—a plucky redhead with a perfect pout. Even better, the photo is available under a Creative Commons attribution-only license that permits commercial use. What a money saver!

But wait. Do you have a release from the plucky redhead? Do you need one?

Or you attend a writers’ conference and take photos of a famous author speaking at the podium. Later, you capture that same author when he is sloppy-faced and drunk at a large reception. Later still, you snap a photo of him punching a writing rival in the restroom. Can you post those images on Pinterest and Facebook without risking a lawsuit?

Writers should be nervous when incorporating images showing identifiable people in their blogs, books, or social media postings. Violating privacy and publicity rights is a potentially costly mistake.

But you don’t want to walk around with blank releases in your pocket. And what if the photos show hundreds of faces? Do you need releases from every recognizable person? Without releases, are you limited to posting photos of cute puppies and selfies?

Using Images with Identifiable People

The rules about using images with recognizable people come down to two considerations:

  • Did the person in the photo have a reasonable expectation of privacy?
  • How is the image being used?

You need to consider both. Passing one test is not enough.

Did the person has a reasonable expectation of privacy?

Generally, people do not have a reasonable expectation of privacy for anything they do in public. The exception is a performance or meeting where you are informed that taking photographs is prohibited. In those situations, you make an implied promise to honor the no-photo request as a condition to attending the performance or meeting.

If a photo was taken in a private setting, such as a home or office, you should assume you need permission before you post or publish any image showing identifiable people. Contact everyone recognizable in the photo and ask for a release. I provide a sample below.

So for the image of the redhead, look closely to see if the photo was taken in a public place? Since it is often impossible to know, I recommend against using any Creative Commons image showing recognizable faces unless it was obviously taken in a public place.

Regarding the famous author, you may assume the author had no expectation of privacy when speaking at the podium and getting drunk at the reception, since both were in public.

. . . .

Is your use commercial?

Do not use an image of a recognizable person for advertising or promotional purposes ever, even if it was taken in a public setting, is available under a Creative Commons license, or is in the public domain, unless you have written permission. Using anyone’s image for commercial purposes violates that person’s right to publicity. You could be liable for damages, including punitive damages. In some states, these rights survive for up to 75 years after a person’s death.

The line between commercial and non-commercial is fuzzy. Using an image on a book cover, t-shirts or other merchandise is commercial, but posting it on a blog or social media site that is informative and editorial is probably not. Use common sense. How would you feel if you were in the photo?

To return to our hypothetical famous author, you may post an image of the two of you shaking hands or sharing a beer, but don’t say or imply that the author gave your book glowing reviews without written consent. I would not put those images on the back of your book without consent; that’s too closely related to selling a product.

As for the plucky redhead, contact the original photographer and ask whether a release was obtained or is possible. If you use the image on your book cover without a release, it could cost you plenty.

Will your use imply any advocacy or endorsement?

Even if the use is not commercial, do not use a person’s likeness to imply that the person advocates or supports a certain political, religious, charitable or other position without a clear, written release. Again, this violates privacy and publicity rights.

. . . .

How high is the M.E. factor?

As an attorney, I am often asked, “Can someone sue me?” Unfortunately, just about anyone may sue you, even if the suit is frivolous. My rule of thumb about litigation risk is the M.E. Factor: money multiplied by emotion. If a lot of money is involved, then a lawsuit is likely even if there is little emotion involved. On the other hand, if someone is angry, offended, or threatened, then they are likely to sue regardless of a small financial stake. If you get someone peeved enough, you may awake one morning to a process server banging on your door.

Link to the rest at Helen Sedwick

PG says it’s always best to obtain the person’s permission. In writing and signed by the person.

If you’re obtaining an image from an established stock photo seller, you should be safer, but make certain that you’re obtaining the right to use the image for commercial purposes.

If you’re picking up an image online, even if the website says the image is offered under a Creative Commons License that permits commercial use (some Creative Commons licenses do not include permission for commercial use), you’re still not necessarily in the clear.

Anyone can post an image they find online and say the image is offered under a Creative Commons license. However, if the creator of the original image did not grant a Creative Commons license to the image to whomever posted it online, you’re still looking at a potential copyright violation.

The safest place to obtain stock photos for commercial use is a well-established and large stock photo vendor. Adobe is one prominent example.

California Senate passes bill limiting use of rap lyrics in court

From ABC News:

The California state Senate passed a bill that would limit the use of rap lyrics as evidence in criminal proceedings — a controversial and common practice by prosecutors that has garnered national attention amid the indictment in Georgia against rappers Young Thug and Gunna.

Bill AB 2799, which is expected to be signed by Gov. Gavin Newsom after clearing the state assembly, would be the first legislation of its kind to be signed into law.

According to the bill, the legislation seeks to “ensure that the use of an accused person’s creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence.”

Referencing the lyrics of hip-hop artists in criminal charges is not new and is a practice that has drawn criticism from both freedom-of-speech advocates and the musicians themselves, who argue that lyrics — often with no factual connection to a case — are not a true reflection of reality or the artists’ state of mind and serve to prejudice a jury against a defendant.

The bill, which was sponsored by assembly member Reggie Jones-Sawyer, would require a judge to determine the admissibility of the lyrics in question as evidence, and whether they are directly linked to an alleged crime.

. . . .

“It would also recognize that the use of rap lyrics and other creative line expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice,” according to the text of the bill.

Similar legislation limiting the use of rap lyrics in court passed the New York state Senate earlier this year, but stalled in the state assembly. Lawmakers in Congress last month introduced the first federal legislation addressing this practice, garnering widespread support from the music industry.

. . . .

The Restoring Artistic Protection Act — the RAP Act — which was co-sponsored by Reps. Hank Johnson (D-Ga.) and Jamaal Bowman (D-N.Y.), seeks to amend the federal rules of evidence “to limit the admissibility of…a defendant’s creative or artistic expression” in a criminal proceeding, according to the text of the bill.

Supporters of the RAP Act include the Recording Academy, the Recording Industry Association of America, Universal Music Group, Sony Music Group, Warner Records, Atlantic Records, Warner Music Group and the Black Music Action Coalition.

“Evidence shows when juries believe lyrics to be rap lyrics, there’s a tendency to presume it’s a confession, whereas lyrics for other genres of music are understood to be art, not factual reporting,” Johnson said in a statement. “This act would ensure that our evidentiary standards protect the First Amendment right to freedom of expression.”

Link to the rest at ABC News

How the Sexual Revolution Has Hurt Women

From The Wall Street Journal:

Critics of free-market capitalism have observed that the pleasures of freedom are not equally available to all. As the economic historian and socialist R.H. Tawney wrote in 1931, “freedom for the pike is death for the minnows.” This is also true in the sexual marketplace, which was once strictly regulated but has now been made mostly free. In this case, however, the classes are not the workers and the bourgeoisie but, rather, men and women. More precisely, the group of people who have done particularly well from the free-marketization of sex are men high in the personality trait that psychologists call “sociosexuality”: the desire for sexual variety.

The standard questionnaire used by researchers to assess sociosexuality asks respondents how many different partners they have had sex with in the past 12 months, how many partners they have had sex with on only one occasion, and how often they have spontaneous fantasies about having sex with someone they just met, among other questions. Worldwide, there is a significant difference in average sociosexuality between the sexes, with men generally much keener to sow their wild oats than women are.

In a study of male and female sociosexuality across 48 countries published in the journal Behavioral and Brain Sciences in 2005, psychologist David Schmitt and colleagues found large sex differences to be “a cultural universal,” regardless of a nation’s level of economic and social equality between the sexes.

This difference is explained by what evolutionary biologists term “parental investment theory.” Put simply, women can produce offspring at a maximum rate of about one pregnancy a year, whereas promiscuous men can theoretically produce offspring every time they orgasm. Although there are some limited circumstances in which multiple short-term mating might be advantageous for women—in conditions of danger and scarcity, for instance, in which sex might be exchanged for resources and protection—in general, natural selection has favored women who are choosy about their mates.

We see this play out in male and female sexual behavior. Men, on average, prefer to have more sex and with a larger number of partners, while the vast majority of women, if given the option, prefer a committed relationship to casual sex. Sex buyers are almost exclusively male, and men watch a lot more pornography than women do.

Men and women also differ dramatically in their baseline levels of sexual disgust, with women much more likely to be revolted by the prospect of someone they find unattractive. Disgust induces a physiological response that can be measured through heart and respiration rate, blood pressure and salivation, although the individual may not be aware of these indicators, and studies find that, on average, the sexual disgust threshold is much lower for women than it is for men.

Being groped in a crowd, or leered at while traveling alone, or propositioned a little too forcefully in a bar—all of these situations can provoke this horrible emotion. It is an emotion that women in the sex industry are forced to repress. In fact, as the prostitution survivor Rachel Moran has written, the ability not to cry or vomit in response to sexual fear and disgust is one of the essential “skills” demanded by the industry.

Link to the rest at The Wall Street Journal

PG hesitated before publishing this post due to its content and the potential for improper comments.

He hopes that anyone who comments will do so without any adolescent commentary or “all men are pigs” attitudes.

A long time ago when PG was practicing retail law, he was appointed to represent an underage girl who had been treated badly by her mother’s boyfriend and perhaps other adult men. That experience made a deep impression on PG and he doesn’t believe he ever declined a pro bono or low-fee case where he was asked to represent a mistreated woman thereafter.

For the record, PG doesn’t claim to wear or have worn a halo in his legal life, but some types of cases really push his buttons.

Trial Ends in Government Challenge to Penguin Random House and Simon & Schuster Merger

From The Wall Street Journal:

A Justice Department lawyer delivered closing arguments Friday in an antitrust challenge to Penguin Random House’s planned acquisition of rival publisher Simon & Schuster, a test for the Biden administration’s aggressive approach to challenging corporate mergers.

“The merger will reduce the number of players in this market,” Justice Department lawyer John Read said, “and will clearly exacerbate the risk of coordination in the market.”

Lawyers for the publishers countered that the merger would benefit authors and consumers and that the government has failed to prove its case.

“It’s a good deal for all involved, including authors,” said Stephen Fishbein, a lawyer for Simon & Schuster, during closing remarks on Friday.

U.S. District Judge Florence Pan in Washington oversaw the three-week nonjury trial. She hasn’t said when she will rule on whether the publishing merger, valued at more than $2 billion, should proceed.

German media company Bertelsmann SE, which owns Penguin Random House, agreed in November 2020 to buy Simon & Schuster from ViacomCBS, now called Paramount Global.

The Justice Department sued a year later to block the deal, saying it would give Penguin Random House—itself the result of a 2013 merger—too much control over the industry.

Penguin Random House is the country’s largest consumer book publisher; Simon & Schuster is the fourth largest as measured by total sales.

In a pretrial brief, the Justice Department said the combined company would have a market share of 49% of what it described as “anticipated top-selling books,” which the government defines as titles that command advances of at least $250,000.

In his closing argument, Daniel Petrocelli, a lawyer for Penguin Random House, said no one in the industry views “anticipated top-selling books” as a distinct market. The government is focusing on this narrow slice of the industry because it can’t show the acquisition would harm consumers, Mr. Petrocelli said.

The defendants, in their pretrial brief, estimated that only 1,200 books a year, or 2% of the books published by commercial publishers, sell for advances of $250,000 or more.

Famed horror writer Stephen King testified during the first week of the trial, saying he opposed the sale of his publisher, Simon & Schuster, to Penguin Random House.

“Consolidation is bad for competition,” Mr. King said. “That’s my understanding of the book business. And I have been around it for 50 years.”

Mr. King testified that years of consolidation in the publishing industry and the failures of other independent publishers had combined to make it “tougher and tougher for writers to find enough money to live on.” He cited a 2018 survey that found full-time writers were earning an average of slightly more than $20,000 annually, which he described as “below the poverty line.” Mr. King has had a highly successful publishing career, having testified that he has written between 60 and 65 bestsellers.

Mr. King also said writers enjoyed specific benefits by signing with one of the country’s five largest publishers, a group that includes Penguin Random House and Simon & Schuster. Mr. King noted that the largest publishers can pay huge advances, raise awareness of new titles by sending out advanced copies to reviewers and orchestrate sophisticated media campaigns.

“Not every book is successful because of that, but when a publisher really gets behind a book, particularly a big publisher, the chances are that that book is going to probably succeed on some level,” he said.

Mr. King wasn’t cross-examined by an attorney for Penguin Random House.

Link to the rest at The Wall Street Journal

How an Antitrust Trial Could Reshape the Books We Read — and Who Writes Them

From The Authors Guild:

The outcome of an antitrust trial currently underway in Washington could reshape the kind of books Americans read — and who writes them.

Last November, the Department of Justice sued to stop the proposed merger of two of the country’s largest publishers, Penguin Random House and Simon & Schuster. At the time, U.S. Atty. Gen. Merrick Garland said: “If the world’s largest book publisher is permitted to acquire one of its biggest rivals, it will have unprecedented control over this important industry.” The consolidated company, according to Garland, would control half the market for top-selling books.

The Authors Guild, America’s oldest and largest association of published writers, opposes this merger. As we argued to the Justice Department in January 2021 — a position it adopted in its complaint — less competition in the industry, particularly allowing one publishing house to dominate all others, will be bad for authors and readers in general, and it could harm the free flow of ideas in our democracy.

Agents seeking a publisher for a book by one of their authors, especially those with commercial or other potential, often offer the manuscript up for auction to publishing houses, which bid against each other to acquire the right to publish it. When I first entered the publishing world 30 years ago, an auction might attract bidding from eight or nine major publishers.

Over the years, consolidation and mergers have reduced the pool of dominant bidders to five — known to insiders as “the Big Five.” The merger of Penguin Random House and Simon & Schuster would not only reduce that to four, it would create a company larger than the other three publishers in the Big Five combined. This could lead to further mergers, as publishing houses consolidate in reaction to their growing competitors in a kind of self-reinforcing cycle.

Fewer bidders for books, and fewer books that attract more than one bid, will likely drive down advances for authors. As Macmillan Chief Executive Don Weisberg testified: “Less competition is going to change the dynamic. Two of the major players becoming one — the prices, the advances, the type of competition at the auctions — I think it’ll have impact across the board.”

As an example, an author advance of $250,000 or more — which is higher than the majority of advances offered — often represents the total compensation for a book that took several years to write and usually has to cover the writer’s research, travel costs and other expenses. The Justice Department’s attorney asserted in his opening statement that testimony would show the average advance for top-selling authors would go down $40,000 to $100,000 should the merger go through. As bestselling writer Stephen King pointed out in his testimony, book authors have already experienced severe declines in writing income, partly due to fewer publishers bidding for books.

But what should concern all Americans — not just authors — is the potential harm the merger might do to diversity in the marketplace of ideas. Fewer publishers would mean fewer voices — including marginalized voices — being published. It means a reduction in political and cultural viewpoints, which especially can have an impact on authors with unusual, unpopular or controversial ideas, whose books tend to be more of a financial risk for publishers.

Link to the rest at The Authors Guild

Is Publishing About Art or Commerce?

From The New Yorker:

On the afternoon of August 10th, in the E. Barrett Prettyman federal courthouse, the Department of Justice trial to block Penguin Random House from acquiring Simon & Schuster had hit a midweek lull. The courtroom itself—as well as the overflow room, where journalists were permitted Internet access—was a few booksellers shy of crowded. But the first witness for the defense, the mega-agent Jennifer Rudolph Walsh, was intensely present, and seemed thrilled to be testifying. (Penguin Random House was paying her a quarter of a million dollars.) In a rippling cream-colored blouse and gold jewelry, her hair loose around her shoulders, Walsh painted a picture of publishing as a labor of love. Agents, she said, are in the business of fairy-tale matches between author and editor—mind meldings that span decades, shape careers, and win prizes. Walsh even had a magic wand, she added, that was given to her by the novelist Sue Monk Kidd. When the judge Florence Y. Pan asked if agents had a fiduciary duty to secure their writers the highest possible advances, Walsh responded in the negative. “More isn’t always more,” she said. “We’re not always looking to take every single dollar out of an editor’s pocket.”

The exchange exposed the core question of the day, and of every day in a trial that has riveted the publishing industry since proceedings began on August 1st: Is publishing about art or commerce? The answer, of course, is “Both”—as with any creative business—but watching each side wrestle with that ambiguity has been instructive. Penguin Random House, itself the product of a merger between Penguin and Random House in 2013, is the biggest of publishing’s so-called Big Five. (The others are HarperCollins, Macmillan, Simon & Schuster, and Hachette.) If the acquisition goes through, the new company will dwarf its nearest rivals. This is one of the first high-profile antitrust suits to be brought by President Biden’s Department of Justice. It may, along with the recent appointment of Lina Khan as chair of the Federal Trade Commission, indicate a new direction for the country’s regulatory climate. But, to people who care about books, what’s gone most conspicuously on trial is publishing itself. In the course of two weeks, an image of publishers as savvy and data-driven has vied with a tenderly drawn (auto-)portrait of gamblers, guessers, and dreamers. At times it has felt reasonable to wonder whether the industry should be characterized as an industry at all.

The spectacle has been curiously entertaining. Publishing executives have had to initiate federal employees into a dialect of “backlists,” “advance copies,” and “BookTok influencers.” Onlookers have been treated to piquant performances, from the cheeky verve of Simon & Schuster’s Jonathan Karp to the C-suite solidity of Brian Murray, of HarperCollins, who seemed to quietly deflate under a round of pointed questioning. On Tuesday, the horror maestro Stephen King popped up to testify that “consolidation is bad for competition” and that the disappearance of “idiosyncratic” imprints from the publishing landscape has made it “tougher and tougher for writers to find enough money to live on.” King, who wore sneakers and introduced himself as a “freelance writer,” wanted to advocate for younger and less established peers—those for whom a book deal might mean the difference between creating art and waiting tables.

And yet King’s championing of struggling artists felt tangential to the specifics of the trial.

Government lawyers have built the heart of their case around a relatively narrow category—“anticipated top sellers”—where the threat of monopsony is greatest. The plaintiff defines these as the small fraction of books for which authors receive advances of two hundred and fifty thousand dollars or higher. They are also the books that tend to fly off shelves and the books with which publishing houses pay their bills. The Justice Department is claiming that a Penguin Random House–Simon & Schuster merger would suppress competition for top sellers, driving down advances and ultimately lessening both the number and the diversity of the titles. The defense has countered that “anticipated top seller” does not designate a real market—merely a “price segment.” One cannot “anticipate” a blockbuster, lawyers have implied; the publishing gods are fickle, and whether a book will sell at all—much less go supernova—is anyone’s guess. Moreover, Simon & Schuster’s authors would benefit from access to Penguin Random House’s superior distribution and sales teams. Other houses would need to compete even harder to lure them away.

One by one, soberly dressed executives mounted the dais to frame publishing as a game of chance—a “business of passion,” in the words of the departing Macmillan C.E.O., Don Weisberg. “Everything is random in publishing,” Markus Dohle, the C.E.O. of Penguin Random House, testified on August 4th. “Success is random. Best-sellers are random. That is why we are the Random House!” Acquiring books, Brian Tart, the president of Viking, testified on August 3rd, “is as much an art as a science.” To illustrate his point, he described passing on Marie Kondo’s “The Life-Changing Magic of Tidying Up” and the current No. 1 New York Times best-seller, “Where the Crawdads Sing,” by Delia Owens. Judge Pan observed that profit-and-loss statements “are really fake.” Tart enthusiastically agreed. On August 2nd, Karp, the C.E.O. of Simon & Schuster, testified that gloating over a best-seller is like “taking credit for the weather,” and wryly recalled the eagerness with which he’d promoted a manuscript by a prominent spiritual guru. “Unfortunately,” he said, “his followers didn’t follow him to the bookstore.”

The rogue’s gallery of industry figures presented a stark contrast to the government’s expert witness, the economist Nicholas Hill. Soft-voiced and physically imposing, with broad shoulders, thick silver hair, and a square chin, he was there to reinforce the idea of an “anticipated top seller” market. Writers behave differently around the two-hundred-and-fifty-thousand-dollar threshold, Hill alleged. They’re “making different choices.” His most memorable contribution, though, was a series of Gross Upward Pricing Pressure Index (guppi) models, which he’d crafted to theorize about the market share that a joint Penguin Random House–Simon & Schuster might capture.

The guppis proved a matter of tense dispute. If Hill embodied the Justice Department’s academic approach, Mark Oppenheimer, an attorney in the defense, appeared intent on casting him as the Casaubon of economic consultants. A meandering cross-examination summoned impressions of mystifying esoterica, as Oppenheimer’s attempt to refute Hill’s methodology morphed into a ritual hypnosis, a ceremony to stupefy the courtroom. The lawyer, gentle and avuncular, dramatized his own inability to keep “monopoly” and “monopsony” straight; he paused to rifle through his notes, asked repetitive questions, and referred Hill to such destinations as a table’s “last column, fifth line”—or was it the “sixth line”? Several times, Judge Pan challenged Oppenheimer’s path of inquiry, and at one point pleaded with him to move on. When the court recessed, a clutch of ashen reporters staggered out of the overflow room. “Guppies,” Publishers Weekly’s news editor John Maher, who’d been valiantly live-tweeting the trial, whispered. “All I see are guppies.”

The entertainment value of Hill’s models aside, his larger case was persuasive. Big Five publishers possess advantages that render them uniquely attractive to literary stars: reputation, breadth of distribution, breadth of marketing, and—perhaps most important–extensive backlists that generate enough revenue to offset potential losses. New companies, such as the bantling publisher Zando, “can’t expand to mitigate the anticompetitive effects of the merger,” Hill said, because they lack such backlists, which grow over decades, like oaks. Yes, publishing is a risky endeavor; yes, the elusiveness of a good formula for success means that small presses and self-published authors all have a shot at producing a best-seller. But, year after year, the Big Five churn out the vast majority of profitable books—and this is precisely due to their ability to manage risk. Success in the publishing industry is not being able to publish a single hit; it’s being able to publish many hits over a long period of time. Here, the larger publishers eat their competitors’ lunch.

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

That Was My Idea! How Hollywood Is Avoiding Story Theft Claims

From The Hollywood Reporter:

A ragtag group of misfits, each with their own unique skill, bands together to pull off a high-stakes con. Depending on your preferences and streaming subscriptions, the film that comes to mind could be the 1955 classic Rififi, this year’s DreamWorks animated comedy The Bad Guys or any of the dozens of other heist movies like The StingReservoir DogsOcean’s ElevenNow You See Me and Baby Driver that were released in between.

Tropes aren’t specific to the heist genre, and by definition they’re not uncommon. Yet, that kind of similarity is often enough to spark an idea theft claim — and in the peak content era, there’s more opportunity than ever to file such suits. Ideas are generally not protectable absent an agreement, so the cases usually manifest as claims for copyright infringement (“I sent an agent my script and another writer copied my particular expression of the idea”) or breach of contract (“I had a pitch meeting and a producer used my idea but didn’t pay me”).

“From a contract perspective, the question is whether or not an agreement is reached,” says Stephen Doniger of Doniger Burroughs, a litigator who often represents plaintiffs in intellectual property cases. “People pitch things all the time in hopes someone thinks they’re brilliant and wants to work with them. That doesn’t create an automatic agreement for payment if they use that idea.”

Entertainment litigator Bryan Sullivan of Early Sullivan reiterates that the idea has to be pitched to someone with the intention of them buying it. “I think that’s the number one misunderstood aspect of this claim,” he says. “If you pitched it to them looking for feedback, like ‘Hey, what do you think of this idea,’ you don’t have any right to sue them if they go off and are hugely successful with the expression of the idea.”

Copyright claims aren’t any easier, as plaintiffs must prove the projects are substantially similar and that the defendant had access to their work. With the ubiquity of social media, access looks different than it did a decade ago. Instead of mailing a treatment to an agency or production company, an aspiring writer can send an idea through a direct message or via email.

TV writer-producer (and former THR editor) Marc Bernardin (Star Trek: PicardCastle Rock) says he politely shuts down any followers who ask him to hear a pitch. “Nobody is trying to be a dick,” he says. “Everybody is trying to protect themselves from litigation and protect aspirants from disappointment. Blowing up somebody’s DMs with PDFs of scripts is not going to do anybody any favors.”

Doing people favors is actually what sparks many idea theft disputes, according to litigator Greg Korn of Kinsella Weitzman, who regularly represents clients defending against these claims. “Someone knows an agent and asks, ‘Can you look at this screenplay by a friend of mine?’ Then later that person sees something that has come out with vague similarities and they fantasize that there must have been some Machiavellian scheme to exploit their idea without them,” says Korn. “It feels like the ultimate injustice. It becomes a matter of principle and pride even when it looks like [a lawsuit] will go badly, and frequently it does.”

Talent lawyer Matt Johnson of JSSK, who works with some of the industry’s most prolific creators, is dealing with two active claims. “One was a blind submission to the friend of my client, and the other sent it to the agency that the person is represented by,” he says. “A good half the time these claims come from someone who’s not connected who’s trying to create a nexus. If it’s not from a trusted source, the number one piece of advice is not to open it. You can prove something wasn’t opened digitally. If something is received in the mail, the same philosophy applies. Return it, unopened, and document it.”

The attorneys consulted by THR suggest that industry reps should follow similar protocol. “I get five to ten submissions a day,” notes talent lawyer Linda Lichter of Lichter Grossman. “They don’t send me the script. They say, ‘I have a great story for client so-and-so,’ and they describe it and ask me to pass it along. I used to reply to every one and say, ‘We don’t accept submissions,’ but now they get sent to spam. It’s too much. Of course, I worry that if they’ve sent it to me and my client happens to do something similar, they’ll say, ‘I gave it to the lawyer, so the client had access.’”

The most recent idea theft case to make headlines came from a self-described aspiring writer and performer who claims ABC’s Emmy-nominated Abbott Elementary is a rip-off of This School Year, her mockumentary-style comedy set in an inner-city school. In a July 12 lawsuit, Christine Davis says she pitched the show to two execs at Blue Park Productions, an incubator for Black female creators, who she believes then took her idea to Hulu. There’s no further detail in the complaint, other than an allusion to connections at the streamer, but Blue Park has no ties to Abbott Elementary.

Link to the rest at The Hollywood Reporter and thanks to S. for the tip.

Before he was a lawyer and when he started working for a large advertising agency, PG recalls being briefed by an agency lawyer with a couple of other new hires about how to handle unsolicited ideas.

As PG remembers it, the drill if an employee of the agency received an unsolicited idea for a commercial or advertisement, she/he was instructed to stop reading it as soon as they discovered what it was, draw a line where they stopped reading, labeling the line with something like, “I stopped reading here,” put it into an envelope and send it to the agency’s attorney.

For the record, PG has never received such a letter, email, etc., and doubts he qualifies as a juicy target for anyone to sue these days.

If Mrs. PG or a friend of PG’s received such a letter, PG would be inclined to follow the general pattern described in the OP, send it back with a letter or email saying you don’t accept ideas from anyone, send the original back and keep a copy of your letter or email somewhere (but this is not legal advice).

The Weirdest Quotes From the Penguin Random House Trial

From Book Riot:

As you may or may not know, the United States Department of Justice (DOJ) is suing to prevent Penguin Random House (PRH) from acquiring/merging with Simon & Schuster, on the grounds that it will lose authors money. Unlike many antitrust suits, it is not concerned with monopoly (not enough sellers) but monospony (not enough buyers). I explained in more detail when the trial was first announced.

. . . .

Right out the gate, while defining terms, PRH’s lawyer described “backlist” as meaning “Books that were published a very long time ago.” (Backlist is anything more than a year old by most definitions, but it can mean anything that isn’t brand new.)

. . . .

“My name is Stephen King. I’m a freelance writer.”

This is the tweet heard round the world, isn’t it? First a brief explanation: all witnesses are asked to identify themselves this way, by name and (relevant) occupation. So he didn’t do anything wrong here.

Now back to snark. Imagine being Stephen King and introducing yourself this way. Actually, imagine being Stephen King and introducing yourself the way “freelance writer” suggests. “My name is Stephen King. I can’t afford health insurance.” “My name is Stephen King and I work in coffee shops.” “My name is Stephen King. Will do novels for food.” “My name is Stephen King and last month I made negative 73 dollars.”

. . . .

Simon & Schuster CEO Jon Karp said quite a few outrageous things, most of which involve his testimony contradicting his earlier deposition. None of them are particularly quote-worthy without context (read the thread!) but I was delighted that the DOJ lawyer apparently hurt his feelings by saying, “I should have guessed you’d have a big vocabulary, as head of a publishing house.”

Karp also called self-publishing “more of a threat than I thought” in reference to Brandon Sanderson’s $50 million Kickstarter — something that literally no other self-published author is capable of achieving, yay — and, in defending the idea that publishers don’t guarantee a marketing budget, said, “It’s like taking credit for the weather. You can’t promise success to the author.”

. . . .

The quote heard round the world, part two: $100,000 is, according to Karp, a “fairly small advance.” Lilith Saintcrow breaks down why that is a lie — and the implications.

. . . .

Actual Jon Karp quote: “I’m not a game theorist, but….” Honestly, the man is hilarious. Asked if he has calculated Amazon’s market share: “I haven’t. I wish somebody would!” Govt isn’t taking the bait, but Karp is definitely pushing buttons.

. . . .

From PRH CEO Markus Dohle: “Everything is random in publishing. Success is random. Bestsellers are random. So that is why we are the Random House!”

Link to the rest at Book Riot

PG thinks the CEO’s didn’t listen to what their lawyers told them about their demeanor on the stand and how to answer a question. Judges tend to become upset at witnesses that can’t restrain themselves from being flippant in court. Among other things, the judge is constantly assessing whether these guys are telling the truth or not and whether their opinions are reliable.

PG reminds one and all that, although Karp and Dohle carry CEO titles, their companies are owned by very large business interests which strongly desire for this merger to be approved. If the big bosses decide their hired hands contributed to losing this antitrust case, Karp and Dohle will be out on the street tout de suite.

DOJ v PRH: Agents Have Their Say

From Publishers Weekly:

Thursday’s proceedings in the Department of Justice’s efforts to block Penguin Random House’s acquisition of Simon & Schuster started with the remainder of testimony from Norton’s John Glusman and ended with the testimony of literary agent Gail Ross of Ross/Yoon. In this first full day for the defense, a great deal of time was spent on the submission and acquisition processes in publishing and how these affect book advances, from the perspectives of publishers (Glusman, and later Putnam’s Sally Kim), authors (Charles Duhigg), and agents (Elyse Cheney, Ross, and Andrew Wylie).

Glusman, who in Wednesday’s testimony said he didn’t believe the merger would hurt advances, quipped that the Big Five “regularly overpay for books” and that Norton is impacted directly “because we end up losing authors. We don’t overpay for books. We pay on the basis of what we project for sales.” In his opinion, midlist authors will be harmed by the proposed merger.

Next, The Power of Habit author Charles Duhigg took the stand, testifying that he did not start writing books for advances, but instead “to sell millions of copies… because that’s what allows you to make money,” adding: “You make so much money from things beyond the advance.” While Duhigg acknowledged the importance of money to a writer’s career, he also spoke at length about the power of “the right editor.”

In his case, the editor is PRH’s Andy Ward, and Duhigg also talked about the importance of author support from all members of an imprint and publishing house. “These people worked tirelessly [for my book],” said Duhigg in reference to everyone from PR teams to sales staff. “If this merger goes through,” he said, “I believe PRH wants to make the world a better place for writers. The thing I know about Andy Ward and PRH is that they love authors and want to give us the freedom to write what we want to write.”

Next on the stand was Sally Kim, senior v-p and publisher of Putnam, who has been in acquiring roles for 25 years. The defense took Kim through a long back-and-forth about the acquisition process, but Kim—like others in this trial—said that when it comes to predicting sales, “things can’t be calculated exactly.” “How common is it for different imprints to value the same book differently?” the defense asked; Kim replied, “Very different.” And, again like other who appeared before her at the trial, Kim spoke of publishing as “a relationship business,” between publishers, editors, and agents.

During its cross, the government asked Kim why she is always thinking about Putnam’s reputation, and she answered: “Because we want to be known for publishing… books of prestige and of quality, books that people are still going to be reading 10, 20 years from now.”

Despite more questions about the acquisition process that involved advance payments and proportion of books won by and lost to PRH and S&S, all witnesses for the defense, including the three literary agents who testified Thursday afternoon, emphasized matters of literary prestige, taste, experience, and “nuance.” Elyse Cheney said, “I want to go to an editor who’s going to get the best book out of my client.” She also told the government, when asked about pricing a deal, that she cares less about advances and marketing spending than about reputation overall: “In general, PRH has made a real commitment to books over a long period of time,” said Cheney. “Whereas a company like S&S that is a shareholder driven cannot develop the same tools as a company like PRH, and could post-merger.”

The judge asked if Cheney was saying “competition doesn’t matter in book publishing because you are hand-selecting these editors?” and Cheney replied that competition is not the primary thing.” Her authors, she told the defense, are “very sophisticated clients, and the editor who can help them make the richest, most robust project? It’s huge. How that editor communicates what that book is about, is essential to success of a book.” She wants “ very particular people” when she’s submitting a manuscript. “Of course, everybody wants to make a lot of money, I do as well, but that doesn’t mean I suggest everyone take the largest advance.”

Next, Andrew Wylie of the Wylie Agency told the defense that his agency “doesn’t conduct auctions” and he is satisfied that he’s getting the best deal for his clients because “I’ve been doing it 42 years and I can predict with a high degree of accuracy whether it might be best to do a multiple submission or a single submission.” He believes a merger would have “a positive result” for his clients and that the highest advances he’s negotiated have been with Big Five publishers “because I think they have the broadest talent editorially, they are generally well financed, and their production and distribution is expert.”

Link to the rest at Publishers Weekly

PG notes that any agent who didn’t toe the Big Publishing line would be out of business well before the inevitable appeals of the trial court’s decision in this case are over.

He also wonders how Judge Florence Pan, who is hearing the case without a jury, feels about “competition is not the primary thing” and “literary prestige, taste, experience, and ‘nuance'” being at the heart of an agent’s daily concerns when dealing with publishers.

AI-Assisted Inventions Could Spur New Patent Litigation Wave

From Bloomberg Law:

The amount of human involvement needed to secure a patent when artificial intelligence is used to create an invention remains up in the air after a Federal Circuit decision shutting down the possibility of solo AI inventorship.

Patent attorneys expect more litigation on the use of AI in inventions to follow the US Court of Appeals for the Federal Circuit’s ruling last week that artificial intelligence systems can’t be the sole inventors on patents. The three-judge panel noted that the decision was confined to the question of whether computer scientist Stephen Thaler’s creativity machine could be the only inventor listed on a patent application, not whether inventions “made with the assistance of AI” are eligible for patent protection, according to the precedential opinion.

The opinion left unresolved how some provisions of the Patent Act should be interpreted when AI is involved and what constitutes sufficient human contribution for the person to qualify as an inventor, attorneys said. As the US Patent and Trademark Office grants such patents, courts will start having to grapple with new legal challenges surrounding AI inventions across industries.

. . . .

Thaler’s loss last week marked his latest setback in his quest to convince jurisdictions around the world that his creativity machine called DABUS is the rightful inventor on two patent applications. The Federal Circuit sided with courts in Australia and Europe that found only humans can be inventors under existing statutes. Thaler said he plans to appeal the Federal Circuit’s decision to the US Supreme Court.

It would be up to Congress to change the Patent Act to allow for non-human inventors, but until then, there’s “no ambiguity,” Judge Leonard P. Stark wrote in the opinion.

More challenges to patents created with the help of AI will follow, said Susan Krumplitsch, a partner at DLA Piper, though they likely won’t center on whether the AI should be allowed to be the inventor, as Thaler argued. When inventions rely on machine learning and neural networks, it’s not clear how important the person was in the creation of the invention, she said.

“These issues haven’t been explored,” Krumplitsch said. “I would expect in the coming years, as these patents come up, and we see them in court, and they’re pulled apart, we’ll see more of a focus on who was doing what, and was the human contribution enough to be an inventor contribution.”

If the artificial intelligence system did all or most of the work, the humans involved in the inventions may not be able to take the oath required by the patent office that they are the rightful inventors, said Christopher S. Schultz, a partner at Burns & Levinson LLP in Boston.

Link to the rest at Bloomberg Law

As PG mentioned in earlier posts, it’s only a matter of time until the AI/author copyright question arises as well.

What we gain from independent publishers and bookstores

From Nathan Bransford:

The antitrust trial over Penguin Random House’s proposed acquisition of Simon & Schuster is now in its third week. There’s a whole lot of coverage and smaller bits to chew on, and if you want a deep dive, Publishers Weekly and Publishers Lunch ($ link) have comprehensive coverage.

Just two of the eyebrow-raisers yesterday came when agent Andrew Wylie testified that he doesn’t do auctions, and when author Charles Duhigg asserted that authors don’t want advances higher than they can possibly earn out. (Um, yes they very much do).

But I also wanted to touch on two articles that discuss the impact on authors and the independent publishing ecosystem. Bookseller Richard Howorth argues in the NY Times that industry consolidation threatens the number of quality midlist books that get published, and Nicole Chung writes about the need for independent publishers to survive so they can nurture authors.

. . . .

It’s not personal, but it can really feel like that sometimes. Jillian Medoff talks about breaking up with her agent.

Link to the rest at Nathan Bransford

Lots of links in the OP.

Writers’ Arbitration Ruling Yields $42 Million From Netflix

From Publishing Perspectives:

On Thursday (August 4), it was announced to members of the Writers Guild of America that a case of arbitration with Netflix has resulted in a huge win for screenwriters, coming to some US$42 million in residuals.

As the pace of development of books to film picks up—and as many international book publishers and literary agencies work to develop stronger channels into screen development deals for their properties and authors—the case highlights an interesting inflection point in the relationship of filmmakers’ writers and the streamers. And as EJ Panaligan at Variety reports, the arbitration was based in the case of the Netflix Original Bird Box, a film based on the 2014 novel of the same name by author Josh Malerman from HarperCollins’ Ecco. (Our interview with Malerman and background from literary agent Kristen Nelson is here.)

As reported by Wendy Lee at the Los Angeles Times, the Writers Guild of America West has reported that 216 writers who worked on Netflix’s theatrical films are being paid a total US$42 million in unpaid residual fees, thanks to the arbitrator’s ruling.

Eric Heisserer (Bird Box, Arrival, Hours) is the most visible screenwriter, thanks to his work on Bird Box. The arbitration has resulted in Netflix being required to pay him US$850,000 in residuals as well as $350,000 in interest.

The point on which the arbitration turned was Netflix’s own move into self-production, the Netflix Originals work—some of it written by guild members—which has become a major element of the company’s film library.

David Robb, writing for Deadline, carries part of an explanation provided by the union to its members on Thursday, and it’s a good summation of how the self-production vs. third-party production aspect of this was at the heart of the decision.

For our international readership: there are several industry acronyms here, all of which may not be familiar. Rather than spell each out on first reference–which complicates the text–we’ll list them here in the order you’ll encounter them before quoting the guild.

MBA: minimum basic agreement
DGA: Directors Guild of America
SAG-AFTRA: Screen Actors Guild-American Federation of Television and Radio Artists
AMPTA: Alliance of Motion Pictures and Television Producers

The Writers Guild of America West leadership writes to members:

“When a theatrical [film] is licensed or released in any other market—like streaming or television or home video—residuals must be paid on revenues earned in those markets. The typical residual for the credited writer is 1.2 percent of the license fee paid to the producer for the right to exhibit that film.

“If the license is between related parties—for example, when Netflix is both the producer and the distributor of the film—the MBA [minimum basic agreement] requires that the company impute a license fee based on arm’s-length transactions between unrelated parties of comparable pictures—for example, a Sony film licensed to Netflix. This critical definition, negotiated as part of the resolution of our strike in 2008, protects against the undervaluation of license fees through self-dealing.

“Rather than follow the established MBA definition for related-party transactions (which exists in the DGA and SAG-AFTRA agreements with the AMPTA as well), Netflix negotiated new deals with the DGA and SAG-AFTRA that allow Netflix to pay residuals on significantly less than the cost of the film. Netflix then tried to force the Writers Guild of America to take this ‘pattern’ deal. Since it was clear the new formula negotiated by the other guilds undervalued these ‘imputed’ license fees, the guild instead took the dispute to arbitration.

“During the arbitration, the guild showed that when Netflix licensed comparable theatrical films from third party producers it almost always paid a license fee that exceeded the budget. The industry refers to this model as ‘cost-plus.’ The guild argued that Netflix must apply this cost-plus model to its own films and impute license fees in excess of the budget for the purpose of paying residuals. The arbitrator agreed and ruled that the license fee should be 111 percent of the gross budget of the film.”

Link to the rest at Publishing Perspectives

A weird state law lets Virginians sue books. Politicians are using it to dictate what we can read.

From FIRE:

Book bans seek to enlist the power of the state to dictate what each of us and our families may or may not read — and thus are sharply at odds with the First Amendment and our pluralist democracy.

That’s the message delivered by FIRE and the Woodhull Freedom Foundation in an amici curiae brief filed today with a Virginia state court tasked with determining whether two award-winning books, Maia Kobabe’s “Gender Queer” and Sarah J. Maas’ “A Court of Mist and Fury,” are legally obscene.

In May, two Virginia politicians filed a petition against the books in Virginia Beach Circuit Court, seeking declarations of obscenity that, pursuant to state law, would prohibit bookstores from selling either work. Their request invoked a rarely-used state law that allows Virginians to sue books and to compel their publishers and authors to defend them in court. After a retired state judge found “probable cause” that the works are “obscene for unrestricted viewing by minors,” the petitioners sought temporary restraining orders to bar commercial distribution of the book.

In today’s brief, FIRE and the Woodhull Freedom Foundation argue that neither book comes close to constituting obscenity as defined for minors under longstanding state and federal precedent. The books “will not appeal to or have value to every audience,” we recognize, but the First Amendment only requires that the books have “value to an audience” — and both plainly do.

Moreover, FIRE and Woodhull argue, book bans are antithetical to the First Amendment and the pluralist values it protects:

Some readers will choose not to purchase or read the books at issue in this case. Some retailers and some librarians will decline to place them on the shelves. Our Constitution reserves these choices for individuals and forbids them from the state. In our pluralist democracy, the First Amendment prescribes a remedy for audiences offended by protected speech: those who seek to avoid “bombardment of their sensibilities” may do so “simply by averting their eyes.” Cohen v. California, 403 U.S. 15, 21 (1971). Declaring books obscene because they include discussions or depictions of sex would reprise a discredited era of censorship repudiated by decades of Supreme Court precedent.

Drawing a link between the “current national push to ban books discussing sexuality, identity, and other controversial topics” and the “increasing comfort with censorship that amicus FIRE has fought against for over twenty years on campuses nationwide,” our brief makes the case for freedom of thought.

Link to the rest at FIRE and here’s a link to a page where you can read the FIRE Brief.

FIRE stands for the Foundation for Individual Rights in Education. FIRE summarizes its mission as follows:

FIRE’s mission is to defend and sustain the individual rights of all Americans to free speech and free thought—the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

PG hasn’t agreed with 100% of FIRE’s positions, but he does agree with a great deal of what FIRE advocates and the causes it takes to court.

Prolific romantic fiction writer exposed as a plagiarist

From The Guardian:

A prolific, self-published romantic fiction novelist has been exposed as a plagiarist after a reader spotted that she had switched the gender in a tale of romantic suspense to turn it into a gay love story.

Becky McGraw, a New York Times bestselling writer, was alerted by one of her readers about the similarities between her own novel My Kind of Trouble, in which Cassie Bellamy falls for bad boy Luke Matthews when she returns to her hometown of Bowie, Texas, and Laura Harner’s Coming Home Texas, in which Brandon Masters falls for bad boy Joe Martinez when he returns to his hometown of Goldview, Texas.

“She emailed to ask if I’d started writing gay romance under a pen name,” said McGraw, whose editor subsequently reviewed both books, and highlighted the similarities. These have also been extensively detailed online by novelist Jenny Trout; Trout has provided screenshots and extracts from both books, and writes that “Harner’s clever trick here was to pick a book that was not M/M [male/male], but M/F contemporary romance. As far as readers go, there isn’t a lot of overlap between the two genres.”

McGraw writes: “Since she’d gotten the call from Imelda, the closest thing to a mother that Cassie had known since her own mother died when she was ten, Cassie had been in that mode. Once she decided she needed to come back, the memories she thought she buried ten years ago would not leave her alone. Thoughts of Luke Matthews would not leave her alone.”

Harner, whose Amazon profile says she has written more than 50 novels and sold almost half a million books, writes: “Since he’d gotten the call from Isabella – the closest thing to a mother that he’d known since his own mom died when he was nine – Brandon seemed to be stuck on a never ending sentimental highway. Once he decided he needed to come back, the memories he thought he buried long ago wouldn’t leave him alone. Thoughts of Joe Martinez won’t leave me alone.”

“Her book was almost a word-for-word, scene-for-scene duplication of my book, except the characters’ names had been changed, and short M/M love scenes had been inserted,” said McGraw. “The only scene she didn’t include was the epilogue, which couldn’t be altered to an M/M scene. It involved the heroine in labour and the hero having sympathetic labour pains.”

McGraw is intending to take legal action against Harner, who has pulled the book from retailers since McGraw first posted about the situation on Facebook, along with her Deuce Coop series, which was revealed to be similar to Opal Carew’s Riding Steele novel, again a straight romance turned into a gay one. The similarities were laid out in a second blog post by Trout, who wrote that “it’s almost impressive how much Harner was still able to plagiarise from Carew here, given the fact that the characters are of mostly different physical and clothing descriptions”.

Responding to the Guardian in a statement, Harner said she realised she had “made mistakes”. “I own them, and I will deal with the consequences. In transforming two M/F romance stories into an M/M genre, it appears that I may have crossed the line and violated my own code of ethics,” she wrote.

“For those who know me best, you know that responsibility for my actions begins and ends with me. I will also add there are some personal and professional issues I’ve had to deal with in the last year that have stretched me in ways that haven’t always been good for me. I write about certain concerns related to military service for a reason; however, I am not offering that as an excuse. I just think whenever someone acts so out of character, it’s helpful to ask why.”

Harner added that she was “working to address concerns raised by two authors who have accused me of plagiarism”, saying that she would provide a more complete statement later this week. “Until then, please do not judge me too harshly.”

McGraw, however, urged other romantic fiction novelists to check Harner’s backlist to see if they recognise their work. “Considering that Laura Harner, AKA LE Harner, has ‘written’ in seven or eight genres in five years, started series in those genres, and published 75 books so far in that span of time, I’d say everyone in every genre needs to be concerned, both indie and traditionally published authors,” she said.

Link to the rest at The Guardian

Don’t count on agents and publishers to polish your diamond in the rough

From Nathan Bransford:

Some authors have heard that agents engage in pre-submission editing prior to submitting to publishers. Failing that, they know that editing is literally in an editor’s job title.

So if you just have a great idea for a book, an agent and editor will help you polish it up into something publishable, right?

Don’t count on it.

Yes, sure. Some agents really do offer pre-submission editing. But typically these are situations where agents are taking a book project that’s nearly there and helping it that last extra mile across the finish line. They’re taking books that are already in the 99.5th percentile and getting them to the 99.9th. They’re not taking a hot mess and turning it into gold.

Ideas are highly, highly overrated. Execution is what matters. Your writing needs to be competent at worst, ideally much more than that. However you feel about [insert traditionally published bestseller with a reputation for being poorly written], it is way better than the vast majority of what goes unpublished.

. . . .

Unless you are writing on a highly topical nonfiction project with a very specific bombshell, current events don’t tend to matter much in the book world, particularly for fiction. It doesn’t pay to rush.

Link to the rest at Nathan Bransford

PG worked for a large advertising agency a long time ago. Shortly after he started work, he had a visit from one of the agency’s attorneys to discuss what to do if he received a letter with an idea for a commercial or other advertisement.

Basically, when PG realized that he was receiving an unsolicited idea from outside the agency, he was to immediately stop reading the letter and mark the place where he stopped reading. He was then to walk the letter over to the legal department and hand it to someone who would draft and appropriate response to accompany the returned idea letter back to the sender.