Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

What I’ll Be Watching in 2023

T’is the week for year-in-review and/or looking-ahead articles. In that spirit, I recommend posts by Devlin Hartline, Hugh Stephens, and Aaron Moss. And here’s my list with commentary for your consideration:

AWF v. Goldsmith

Everyone in copyright world will be waiting, like Ralphie expecting his decoder ring, for the decision in this case. The highly anticipated question is whether the Supreme Court will provide clear guidance on the meaning of “transformativeness” in the factor one analysis of the fair use test. By invoking this highly subjective concept, follow-on creators have, at times, pushed lower court decisions toward problematic findings—first by finding “transformativeness” in secondary works that encroach on the derivative works right and/or classic instances where licensing is required; and second, compounding these errors by giving undue weight to factor one in the overall analysis.

AWF has argued that any “new meaning or message,” which may be subjectively interpreted by observing a follow-on work meets the definition of “transformative” and is, therefore, outcome determinative for finding fair use. Although, I have opined that this case poses certain difficulties in my view (i.e., that Warhol may have defenses under other principles), I agree that AWF’s argument presented here should be rejected and believe the Court should state that factor one must turn on whether the follow-on work contains at least some modicum of commentary on the original work. Absent such commentary, factor one should favor the copyright owner plaintiff. We shall see what the Court says in the coming weeks.

Hachette v. Internet Archive

Inasmuch as this is a very big case that could go all the way to the Supreme Court, it is almost impossible to fathom how Internet Archive is not destined to be rebuffed on the merits at every turn. What began as a lawsuit in response to IA’s unlicensed distribution of over one-million titles (using the fog of early COVID shutdowns as a rationale) is now a detailed complaint in which the facts imply more than just founder Brewster Kahle’s anti-copyright crusade.

In 2017, I asked whether the good aspects of IA require all the anti-copyright rhetoric in order to exist, and that was presuming Kahle’s well-known opposition to copyright was purely ideological. But some of the details in the publishers’ complaint imply financial interests that belie any pretense that IA is a principled, though misguided, Robin Hood. Expect to see the organization continue to allege that it is “just a library doing what libraries do,” but if this were true, the publishers’ suit would have been dismissed at the summary judgment stage. It should be clear by now that just because you say something on social media, that doesn’t make it true—least of all in a court of law.

The Copyright Claims Board (CCB)

Launched this past June, 2023 may be the year we really start to test the efficacy of the copyright small-claim alternative. For starters, the big question is how many respondents will opt-out of the tribunal. In order for the small-claim option to be constitutional, a defendant (respondent) must voluntarily agree to the proceeding, which led some to reasonably wonder whether the CCB will work at all if every defendant can simply opt out. But that question partly depends on how many plaintiffs are willing to file federal lawsuits, if the respondents are unwilling to resolve the matter at the CCB.

Further, to really understand how things are going at the CCB, we need a volume of cases and more time to allow the process to unfold. The plaintiff has 90 days once her case is active to show proof of service on the respondent, and the respondent has 60 days to opt out of the proceeding. Thus, with fewer than 300 cases filed between June and December this year, we simply do not have a lot of data yet. That said, Rachel Kim at Copyright Alliance posted a blog summarizing what we do know so far, and it’s worth a read.

Artificial Intelligence

I will not attempt to predict where this story goes in 2023, other than to expect that AI will continue to make headlines in the art world and beyond. As stated many times, I personally think AI generated “art” is a useless waste of computing power, but even if every artist and art consumer in the world agrees with that view, it seems unlikely that market failure of the companies behind generative AIs will predate one of these entities getting sued for copyright infringement. Perhaps not this coming year, but before long, expect to see litigation over the question of whether inputting large volumes of protected creative works into these databases amounts to mass copyright infringement or is exempted under the doctrine of fair use. And in anticipation of this battle, both sides of the argument may be scrutinizing the opinion(s) in AWF v. Goldsmith.

Gonzalez v. Google

Not a copyright case, but on the subject of platform accountability, the Supreme Court will finally have something to say about Section 230 of the Communications Decency Act. The decision likely won’t come until 2024, but we will soon see briefs filed on behalf of Google, and oral arguments will be heard in 2023. I recently posted about this case here and here, but suffice to say, it is hard to imagine that the majority will not generally agree that the statute neither states—nor ever intended to state—that online platforms are entitled to the kind of unconditional, broad shield against civil liability the lower courts have granted them for nearly 20 years.

Although 230 is not copyright law, it shares a kinship with the contemporaneous DMCA. Both laws were predicated on immunizing platforms from liability for material posted by users, and although neither law grants these immunities unconditionally, many online service providers—especially the big ones—have wielded these liability shields beyond the limits of reason or anything Congress intended in the late 1990s. Thus, if the Court reigns in the free-for-all applied to date under Section 230, it is conceivable that the opinion in Gonzalez will inform congressional review of the DMCA, which began in 2020.

That’s what I got for this December 30, 2022. See you in the new year!

Photo by: MediaFuzeBox

Cyber Civil Rights Initiative Files Common Sense Brief in Major Section 230 Case

In my recent post about Gonzalez v. Google—the Section 230 case granted cert by the Supreme Court—I expressed the view that the word “recommendation” is too charming to describe the interaction between social media algorithms and many users’ experiences. Systems capable of reinforcing suicidal ideations in a teenager or stoking violent instincts in a potential terrorist cannot sensibly be described as “recommending” the kind of content associated with these and other dangerous outcomes. And although petitioner Gonzalez specifically asks the Court to decide whether “algorithmic recommendation” is shielded from liability under Section 230 of the Communications Decency Act, the amicus brief filed by the Cyber Civil Rights Initiative (CCRI) and Legal Scholars asks the Court for a more nuanced reading of the question. From the brief…

Amici emphasize that this case cannot be correctly decided by focusing on “traditional editorial functions” or by trying to craft a general rule about whether “targeted algorithms” fall within Section 230’s immunity provision…. To categorically deny immunity to an ICSP for using targeted algorithms would directly contradict Section 230(c)(2) and finds no support in Section 230(c)(1). Such an interpretation would also have a devastating impact on the victims of online abuse by dissuading Good Samaritan ICSPs from using targeted algorithms to remove, restrict, or otherwise reduce the accessibility of harmful material, including nonconsensual pornography.

CCRI, which works to address and remedy various forms of harassment and civil rights abuses committed via interactive computer service providers (ICSPs), asks the Court to restore the textually coherent and common-sense meaning of Section 230, which was written to encourage service providers to mitigate harmful material—not to unconditionally immunize them from liability for hosting it. For almost twenty years, lower courts have consistently misinterpreted the purpose of 230 to provide automatic immunity just so long as the material at issue is posted by someone other than the platform owner/managers.

This chronic misreading of Section 230 results in two significant problems: 1) dismissal at the summary judgment stage of any claim in which an ICSP may be liable; and 2) failures to provide injunctive relief where the ICSP is not liable but may be ordered to remove material which the court agrees is causing harm to a complainant. As things stand, a site that intentionally trades in harmful material is immunized, and so is a site that unintentionally hosts harmful material but elects not to remove the material for its own reasons. The rationales vary as to why “neutral” platform operators often refuse to remove material alleged, or even proven, to be harmful, but for too long, the industry has echoed the absurd premise that removing anything from a social platform is incompatible with “a free and open internet.”

Section 230 Is (Was) Not Novel Legislative Territory

The CCRI brief is so firmly grounded in the legislative history of Section 230 that it is difficult to fathom how any court—let alone many courts—strayed so far, and for so long, from a plain-text reading of the statute. In describing the common-law (i.e., not groundbreaking) underpinnings of Section 230, for instance, CCRI cites the distinction between a “publisher” and a “distributor” of defamatory material thus:

… “[d]efamation at common law distinguished between publisher and distributor liability.” While a publisher was strictly liable for carrying defamatory matter, a distributor who only “delivers or transmits defamatory matter published by a third person is subject to liability if, but only if, he knows or has reason to know of its defamatory character.” [Emphasis added.]

This is common sense well founded in law. If an individual or a business has knowledge that he/it is facilitating harm caused by a separate, directly liable party, that facilitation may rise to a secondary civil or criminal liability. The newsstand operator is not liable for inadvertently selling adult magazines containing underage models, but if he knows about it, he is probably—and deservedly—in big trouble.

This basic principle of secondary liability applies everywhere except for internet platforms—and only because the courts have so thoroughly misconstrued Section 230 by conflating two sub-sections of the statute, which are meant to be read independently. As the CCRI brief explains, 230(c)(1) states that merely providing access to third-party content (e.g., YouTube hosting a video uploaded by a user) does not make the ICSP a “publisher” or “speaker.” Then, 230(c)(2) states that voluntarily making a good-faith effort to remove objectionable material does not make the ICSP generally liable as a “publisher” of everything it hosts.

“Cases reading Section 230 to have a broader preemptive effect than provided for in (c)(1) and (c)(2) have departed from the statutory text,” states the CCRI brief. It emphasizes the fact that “distributor liability” is envisioned by Section 230(c)(1) where the ICSP has knowledge of the harmful material, and it argues that the function of Section 230(c)(2) is legislatively “parallel” to state Good Samaritan laws written to immunize ordinary citizens against unreasonable liability when we make good-faith efforts to help someone in need of assistance. Prior to these laws, an individual intending to render aid to a stranger could be held liable for inadvertently causing harm, but as the CCRI brief states:

… like state Good Samaritan statutes, Section 230(c)(2) includes important limits to the immunity it provides. First, it does not apply when an ICSP is already under an existing duty to act—i.e., where its action to restrict access to objectionable third-party content is not “voluntary.” Nor does it immunize ICSPs that do nothing to address harm or that contribute to or profit from harm.

Again, this is just common sense grounded in common law that applies everywhere except the internet. If one does not initiate illegal activity but seeks to benefit from that activity, one may be liable for the harm caused. It is inconceivable that Congress ever intended to exempt the multi-billion-dollar internet industry from this longstanding principle. And that’s because it intended no such thing.

It will be interesting to see what amici who file on behalf of Google will argue in this case. Other than the usual panegyrics to the internet, I am curious to see whether, for instance, the EFF will have anything coherent to say in defense of two decades’ worth of textual misreading. Typically, defenders of the status quo reading of Section 230 write about threats to “the internet” as if a lack of immunity automatically results in a finding of liability and damages. But on the contrary, a proper reading of the law simply means that an ICSP cannot so easily dismiss every claim and that the injured party is allowed her day in court to prove whether a platform had, or has, a duty to act. Litigating against tech giants is hardly a fair fight in the first place, and ICSPs neither need nor deserve an unconditional immunity that exists nowhere else in the justice system.

Art is Human

A few months ago, I attended a local event, where photographer Doug Menuez spoke about his project “Wild Place: The People of Kingston, NY.” The description on his website begins . . .

Wild Place is the English translation of Wiltwyck, the original name given to Kingston, New York, in 1661 by Peter Stuyvesant and the Dutch who were facing fierce resistance from local Native Americans. My wife Tereza and I recently moved back to Kingston after a decade away and can see lots of changes, with more to come. It seems like an important moment.

Combining portrait and documentary in both photographs and short video interviews, “Wild Place” presents contemporary Kingston through Menuez’s view of its artists, activists, entrepreneurs, community leaders, and—not surprisingly—people who fit all those descriptions. While listening to Doug talk about the project, I was reminded why I care so much about artists and their work:  because through art and artists, we renew profound, even cathartic, connections to what it means to be human and, in turn, reinforce the reasons why humans bother to make art. My schedule does not permit frequent attendance at such events, but listening to Doug’s articulate, thoughtful, even spiritual discussion about his work was as close I come to listening to a sermon.

In my last post commenting on visual works generators like DALL-E, et al., I reiterated the view held by many that the notion of “AI art” is oxymoronic—as devoid of meaning as having a machine perform a religious rite for its human owner. Whatever creative work without humans ought to be called, it is not art. As such, I maintain that nobody will be interested in works made exclusively by machines for very long and that the current buzz about these generative algorithms may ebb quickly into the sea of trends to swirl in gooey eddies of crypto and NFTs.

This is not to suggest that creators and advocates of creators’ rights should ignore current threats to human artists, or that generative AIs do not preface an even darker version of the “information age” than the present state of madness. In a Facebook post that has been widely shared, a philosophy professor describes catching the first student in his class to use a bot called ChatGPT to write an assigned essay about David Hume. “The essay confidently and thoroughly described Hume’s views on the paradox of horror in a way that were [sic] thoroughly wrong,” the professor writes. “It did say some true things about Hume, and it knew what the paradox of horror was, but it was just bullshitting after that. To someone who didn’t know what Hume would say about the paradox, it was perfectly readable—even compelling.”

That last sentence is unsettling in a world buffeted by conspiracy mongers and alternative facts. No Alex Jones or Donald Trump or Stewart Rhodes required. The next cult figure can be an algorithm producing a “readable—even compelling” restatement on any matter from the Enlightenment to the suppression of viral disease. It is intriguing, if depressing, that a college student attempted to cheat by means of an AI to avoid honest engagement with Hume’s essay Of Tragedy, which contains the following observation:

We find that common liars always magnify, in their narrations, all kinds of danger, pain, distress, sickness, deaths, murders, and cruelties; as well as joy, beauty, mirth,’ and magnificence. It is an absurd secret, which they have for pleasing their company, fixing their attention, and attaching them to such marvellous relations, by the passions and emotions, which they excite. 

Hume could be commenting on the recently announced Trump NFT “trading cards,” which appear to comprise stolen images from the internet and badly photoshopped heads in a series of bizarre portraits depicting Trump as soldier, rancher, business leader, and even a costumed and be-muscled superhero with lasers shooting from his eyes. I got nothin’ except to say that there is no paradoxical pleasure in viewing this particular horror.

On a more sophisticated level, generative algorithms like MidJourney, DALL-E, and Stable Diffusion are all “trained” by inputting a corpus of human-made creative works, most of which are scraped from the internet without permission of any living artists who still own the rights to the works. As PetaPixel reports, MidJourney founder David Holtz flatly admits feeding his system millions of images without permission, and illustrator Molly Crabapple, in an OpEd for the L.A. Times writes:

While they destroy illustrators’ careers, AI companies are making fortunes. Stability AI, founded by hedge fund manager Emad Mostaque, is valued at $1 billion, and raised an additional $101 million of venture capital in October. Lensa generated $8 million in December alone. Generative AI is another upward transfer of wealth, from working artists to Silicon Valley billionaires.

That these AI “art” generators represent yet another example of economic destruction without the creative part is a certainty. Less certain are some of the copyright questions, for instance, whether input of protected works for “machine learning” is infringement. This will remain a theoretical/ideological debate for attorneys, academics, and copyright nerds like me until one of two things happens:  legislation or litigation, both of which move at a crawl compared to the market for new tech toys. If a lawsuit began tomorrow, for instance, it would be hard to say whether the legal questions presented will still be relevant to the market by the time the case is resolved.

Perhaps the real potential of the generative algorithm lies not with illustration or design or music composition, but with medical diagnostics or some other valuable purpose. If computer science is a true science, then it must allow for unintended discovery, and who’s to say that an experiment in “AI art” cannot be the precursor to an algorithm that helps identify genetic disposition for certain infections?

This does not mean, of course, that we should excuse models in the present that undermine the rights or value of the human artist. On the contrary, I mention this alternate history to emphasize the point that of all the things we can do with computing power, one thing we absolutely do not need are machines that make “art.” Tellingly, Hume’s essay is mostly about art, and to the question whether creative expression about tragedy can provoke a sense of pleasure for the audience, he replies:

This extraordinary effect proceeds from that very eloquence, with which the melancholy scene is represented. The genius required to paint objects in a lively manner, the art employed in collecting all the pathetic circumstances, the judgment displayed in disposing them:  the exercise, I say, of these noble talents, together with the force of expression, and beauty of oratorial numbers, diffuse the highest satisfaction on the audience, and excite the most delightful movements.

Maybe the AI cheerleaders will accuse me of anthropic maximalism, but in addition to doubting that an “AI artist” could ever express anything close to the transcendent experience Hume describes, I am certain that we do not want it to even try. Art is human. There are better uses for computers.

Photo by: Abrill