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.

Pirate Sites Calling Themselves Libraries are Pirate Sites

I know I’m arriving late to this party. It’s almost Thanksgiving, but it was back on November 3 that two Russian nationals—Anton Napolsky and Valeriia Ermakov—were arrested in Argentina at the request of the United States on charges of criminal copyright infringement, wire fraud, and money laundering. Concurrent with the arrests, authorities seized 241 domains controlled by the book piracy enterprise the pair allegedly operated called Z-Library. According to TorrentFreak, the repository has migrated, at least in some form, to the dark web.

The indictment against Napolsky and Ermakov was unsealed in a Brooklyn, NY court on November 16, and while they await likely extradition to the U.S., author and publisher organizations and other creators’ rights advocates applaud the efforts of the law-enforcement agencies involved with the investigation. My friend Neil Turkewitz notes, “I have been operating in the copyright world for nearly four decades, and I could probably count on one hand the number of times that a piracy story focused on individual creators rather than the much maligned ‘Big Media.’”

True. Not that “Big Media” piracy is justified, but it is substantially harder to fool oneself that book piracy does not directly harm individual authors, who generally make less than a living wage for their writing. In a statement released by the Authors Guild (AG) praising the interdiction of Z-Library, CEO Mary Rasenberger states, “We owe a tremendous debt of gratitude to the U.S. Attorney’s Office for the Eastern District of New York and to the FBI for all of their hard work in not only shutting down the site but also finding and apprehending the perpetrators. We also thank the U.K. Publishers Association and international authorities who assisted in the investigation, as well as the authors who assisted us by filing statements reporting piracy of their books on Z-Library.”

I will decline to wade again into the morass of rationalizations for piracy that predictably erupted on social media when Z-Library was taken offline. That story never changes. Though, perhaps the rhetoric of the pirates themselves changes—at least a little. “There is a growing — and disturbing — trend of pirate operations masquerading as libraries to manipulate and evade the law,” states Lui Simpson, Senior VP, Global Policy for the Association of American Publishers (AAP). “This action [against Z-Library] sends a clear message that industrial scale infringement will not be tolerated, no matter what the perpetrators call themselves.”

Maybe “library” is the new “sharing service”? Simpson is right, of course, that it doesn’t matter. A pirate operation by any name will still smell like a criminal enterprise, and in case you’re curious about when copyright infringement may be deemed “criminal,” the basics are as follows:  The infringement must be willful and for purposes of commercial or private financial gain; or the works infringed must have a retail value of $1,000 in any 180-day period. That’s not a very high bar, though criminal copyright indictments are typically brought against large-scale, blatant operations like Z-Library, whose estimated 8 to 11-million books it made available obviously exceeds $1,000 by orders of magnitude.

Further, traditional online piracy models demonstrate that the infringer does not have to profit directly from trade in the infringed works themselves. One can copy and distribute works without license and either cross the $1000 threshold (easily), or one can commercialize the traffic generated by “giving away” unlicensed works, which creates a nexus between the infringing activity and commercial/financial gain for the infringer. Historically, the pirate sites made most of their revenue from the online advertising system, but when some of those avenues were closed off by the legit ad industry, the site operators pivoted to various all-you-can-eat subscription models and malware as sources of revenue.

Of course, one does not need to operate a Russian pirate network to engage in illegal copying and distribution of books while telling the public the enterprise is a “library.” Internet Archive calls part of its operation an “Open Library,” even though it does not meet the definition of a “library” under the statute and, more importantly, despite the fact that it does not license in-copyright eBooks but instead produces unauthorized eBooks and makes them available without permission. And it does this under a model that is legally unfounded and operationally so murky as to make anyone wonder exactly how the money flows throughout the organization.

From the author’s perspective, the potential harm caused by IA’s “Open Library” is hardly distinguishable from the harm caused by a Z-Library. So, while IA may not be engaged in criminal copyright infringement, its broad-based efforts to undermine copyright are perhaps even worse. An enterprise like Z-Library will cause harm until it is shut down. What Internet Archive and its friends want to do is to strip copyright rights from authors forever. And I would call that criminal in the colloquial sense, if not in the legal one.

In Gonzalez v. Google, SCOTUS Should Look Beyond the Term “Recommendations”

In October, the Supreme Court granted cert in two cases that may limit the immunity granted to internet platforms under Section 230 of the Communications Decency Act. Both Gonzalez v. Google and Twitter v. Tamneh, arise from plaintiffs seeking to hold platforms accountable for “targeted recommendations” of material associated with acts of international terrorism, but in this post, I will only focus on the former case. Here’s a slightly truncated background as stated in the Gonzalez petition:

In November 2015 Nohemi Gonzalez, a 23-year-old U.S. citizen studying in Paris, France, was murdered when three ISIS terrorists fired into a crowd of diners at La Belle Equipe bistro. . . . Several of Ms. Gonzalez’s relatives, as well as her estate, subsequently brought this action against Google, . . . The plaintiffs alleged that Google, through YouTube, had provided material assistance to, and had aided and abetted, ISIS, conduct forbidden and made actionable by the AntiTerrorism Act.

Doubtless, the particulars of these cases raise complex questions of liability that even many critics of 230’s too-broadly applied immunity may have difficulty defending on all merits. Google’s response, for instance, states that the “ATA claims in this case have produced a procedural morass.” Nevertheless, the Court agreed to review, having denied all Section 230 petitions in the past, leaving some to note that Justice Thomas signaled a strong interest in Section 230 immunity in a brief respecting denial of certiorari in the 2020 case Malwarebytes v. Enigma Software Group. There, Thomas wrote:

Adopting the too-common practice of reading extra immunity into statutes where it does not belong, courts have relied on policy and purpose arguments to grant sweeping protection to Internet platforms. . . . Without the benefit of briefing on the merits, we need not decide today the correct interpretation of §230. But in an appropriate case, it behooves us to do so.

I will leave it to others to discuss whether Gonzalez is the right vehicle to address the most chronic harms caused by overbroad readings of 230—or to speculate exactly what this Supreme Court is looking to achieve in light of the politicized narratives and misstatements that have attached to public discussion about the statute.

Until the Trump administration turned the White House into the Ministry of Misinformation, Section 230 was not mainstream news, and one consequence of those events is that the provision has been misrepresented as a content (i.e., political) neutrality law, which it is not. Though, as discussed in the post linked above, the neutrality rhetoric is a misconception Big Tech promoted itself years before Members of Congress started alleging “anti-conservative” bias and conflating that talking point with threats to abolish Section 230.

But I wanted to focus on the narrow question presented in the Gonzalez petition, which is whether “targeted recommendations” made by interactive computer services are properly immunized. Because whatever the outcome of this case—and if there is any chance that Congress might effectively amend Section 230—both the Court and lawmakers should reject the too-friendly term “recommendation” to describe how algorithms on major platforms are designed to attract and retain user attention.

It is now a matter of record that algorithms trained to adapt to user behavior and feed what may be our worst instincts is an often-toxic phenomenon that is not adequately described by the word “recommendation.” Interaction between the social platform and the human user is not comparable to reading a book review or hearing a friend’s suggestion to see a show or even having Netflix indicate that if you liked movie A, you might like movie B. These positive social transactions are analogized by Big Tech to describe its systems and models in the same way the industry invokes other socially constructive words like “share,” “connect,” and “democratize” while papering over hazards like IP theft, harassment, and the wildfire spread of misinformation.

Google’s Response Begs for Scrutiny

Notably, in Google’s response asking the Court to deny cert in Gonzalez, it practically admits to the insidious nature of algorithmic “recommendation” when it emphasizes the fact that the courts have held that search engines are protected by 230—and that search is comparable to “recommendation.” Here, Google inadvertently highlights the reason search sucks now—because rather than return results based on a reasonably objective definition of “relevance,” the Google search algorithm has been tweaked to return results “of likely interest” to the user based on what Google has learned about them.

I doubt I am alone in finding that search results are consistently less useful than they were just a few years ago—even to the extent that the most logical result (e.g., an entity’s website) appears on page two or three, where it used to at least be the first or second item below the top three paid placements. But on a darker note, Google’s brief practically acknowledges that if the user is an anti-vaxxer or an election denier or believer in some other conspiracy nonsense, they will be served search results likely to reinforce those false narratives. Whatever we want to call this phenomenon and its psychological influence, it is too quaint by some margin to call it “recommendation.”

But even if Google Search still functions in a way that is properly immunized by Section 230 (and I would question that as the technology changes), we confront a whole other level of insidious power to influence with the combination of Google or Facebook’s algorithms and the capacity of video to tap into emotions—especially strong emotions like anger and fear. The notion that the fundamental design of YouTube does not foster a symbiotic relationship between the potential terrorist and the recruiting video is barely plausible. But for sure, it is a phenomenon Congress did not consider in 1996 when it adopted Section 230.

Argus is Allegedly Blind

When it comes to marketing, Google et al. boast the capacity to know what a user is going to buy, how she’ll vote, or what she’ll order for dinner—even minutes before she knows these things herself. But when the conversation turns to liability, these same companies suddenly cannot know much of anything. While Google is probably correct that there are several complicating aspects in the Gonzalez complaint, it also downplays the efficacy of a platform like YouTube to convert latent emotions into dangerous action.

Whether that action is joining ISIS and murdering tourists or joining a mob and attacking the U.S. Capitol or breaking into the home of the Speaker and attacking her spouse, I think we have sufficient evidence to conclude that insane narratives are running amok and driving people to extreme behavior with deadly consequences. Google et al. may not bear direct responsibility for these events—surely, terrorism existed long before the internet—but neither are these platforms mere hapless conduits incidentally fueling the fire. And again, Google almost acknowledges this in its reply brief.

“…since the 2015 Paris attack, YouTube has overhauled its terrorism policies, as one of petitioners’ sources recognizes,” the brief states. Oddly, Google cites a WSJ story which reports that despite changes by the platform, YouTube still “Drives People to the Internet’s Darkest Corners.” More acutely, if YouTube attempted to change its algorithm and/or its policies in response to the Paris attacks, this suggests that a nexus does exist between platform “recommendation” and videos that are likely to motivate violent action. This level of interaction between user and machine, which serves the platform’s interest more than it does the public interest, was neither envisioned nor discussed at the time 230 was adopted.

Circa 1996, the analogies were limited to human publishers who make decisions about what to disseminate, cut, or edit. But those points of reference are woefully incomplete for understanding contemporary data mining and the manner in which algorithms produce real-world events. Thirty years ago, we were talking about this stuff with the expectation that the network might recognize that you’re in the market for a toaster and will show you some ads for toasters. But when toaster shopping feeds an advanced algorithm capable of intuiting that you might be interested in all the videos that will “prove” how the Jews are running the world or that Yoga is Satan worship, that is a very different creature than a “recommendation” machine.

So, as the Court considers whether “targeted recommendations” are properly immunized by Section 230, we should hope that it recognizes how tepid that term is for describing the state of the technology, which behaves nothing like Congress’s understanding nearly thirty years ago. Whatever the proper term should be, it is implausible that Congress intended to provide blanket immunity for a business model that, even occasionally, fuels riots, terrorism, harassment, nonconsensual pornography, rampant misinformation, and even genocide. Surely, these cannot be acceptable byproducts of the most ambitious or prosaic uses of the internet.

Are AI Prompts Authorship in Copyright Law?

The production of creative works by artificial intelligence (AI) provokes many responses—philosophical, cultural, economic, and legal. I have already argued against copyright protection for works created by AI, supporting the longstanding doctrine that copyright rights can only attach to works of human authorship. But one paragraph in a recent article by attorney Adam Adler raises a potentially difficult question as to whether human prompts directing an AI to produce work could ever constitute authorship of the resulting work?  Adler writes:

… proponents of AI art don’t have to look very hard to find the required creative contribution. The most prominent AI works are generated through trial and error using specially crafted word prompts. For example, Jason Allen, the winner of the Colorado State Fair, spent 80 hours crafting the prompts he used to generate the art and tested over 900 different prompts before settling on the winner. Given the sensitivity of AI art generators, one could argue that the selection and refinement of prompts (at least as they are used today) involves significant creative work, analogous to placing a camera or framing a shot. And because a human’s prompt selection informs the creation of the entire work, there would not be any obvious way to disentangle the creative and non-creative elements of the work

Whether Adler endorses the view that the prompts in this example should vest James Allen with the rights of authorship in the resulting image, he is probably correct that advocates for copyrightability of AI works will advance this argument. But is the position valid? If I ask a friend to paint a picture of a weeping willow by a brook, my broad description does not constitute even joint authorship in the painting, and that example is arguably no different than my recent playing around with DALL-E 2 writing prompts with an existing painting in mind—Henry Wallis’s “Chatterton” (1856).

Although the results were nothing like the original work (and I am admittedly a novice propter), the image on the left could, eerily enough, be passed off by a would-be forger as an early sketch in the development of the Wallis painting, and it was admittedly astounding to watch these, and other variations appear in a matter of seconds.

PROMPT: A painting by Henry Wallis of Chatterton wearing purple pants and a stained shirt, strewn across his deathbed in a garret.
PROMPT: A painting by Henry Wallis of the poet Chatterton wearing purple pants and a stained shirt, strewn across his deathbed in a garret, the bottle of poison on the floor.

But returning to the theme of this post, I maintain that I did not author these images or the other variations output by DALL-E 2. Authorship flows from the creative choices made by a human, and there would need to be a colorable nexus between my prompt writing and the selection and arrangement of the choices made in the work—in this case a visual work—upon its fixation.

Prompts by themselves may be protectable “literary works” under copyright law—not unlike computer code, which can be sufficiently creative while also serving a utilitarian function as a set of instructions. But the potential copyrightability of prompts themselves does not necessarily extend to protection of the resulting work—not even in the case of Allen writing complex prompts into the app Midjourney to produce the visual work he called “Théâtre D’opéra Spatial.”

Neither the 80 hours Allen spent nor the 900 different prompts he tested has any bearing on a potential claim of authorship in the resulting image because copyright does not protect “sweat of the brow.” Copyright also does not protect ideas or concepts; and the incident of copyrightability is agnostic with regard to the author’s intent, message, or methodology. Unless there is a lack (i.e., less than a modicum) of originality in the work, copyright attaches upon fixation, and without consideration as to how or why the work was made. But the Allen example implies a potential difficulty in the doctrine to which Adler alludes in his description.

Given the time and energy Allen spent on the prompts, we can assume he developed a somewhat complex set of instructions, and it is conceivable that there may be a point at which a creative arrangement of prompts could approach a defensible claim of human authorship in the resulting work output by the AI. But it’s tricky, and I am skeptical.

Ordinarily, the moment a work is fixed in a tangible medium, the human’s creative choices may be inferred, credited solely to the human, and the choices need not be explained. In the photojournalist’s image of the factual event, it is longstanding doctrine that the existence of the image itself is evidence that she made sufficient choices (even in a second or two) to meet the “modicum of originality” threshold, and copyright rights are vested in her without asking her to describe or defend the choices made.

AI production may frustrate this doctrine in the near future by providing a reason to ask how a vast amount of work has been produced and about the nature of the human involvement in its production. Then, even if prompts may be protectable literary works on their own, the consideration as to whether this confers authorship to the human in, for instance, a resulting visual work or music work output by the AI implies a case-by-case consideration of copyrightability that would be administrative chaos for the Copyright Office.

It is hard to imagine a generally applicable doctrine that would harmonize the human authorship requirement with a definable nexus between prompt writing and the resulting work, and this suggests that the law must hold that copyright does not attach where an AI has made any (and likely most) of the creative “choices” in the work being claimed.

This view is consistent with the purpose of art and the purpose of copyright—both of which are profoundly human constructs. Neither copyright’s utilitarian origins (i.e., the author must earn a living), nor its civil rights origins (i.e., the product of the author’s mind is naturally his property) has any meaning whatsoever to a machine, just as machine made “art,” in my view, will ultimately mean nothing to humans.

Art without human creators may be decorative, interesting to a point, useful, entertaining, or even conducive to computer science in other contexts, but the products themselves are bloodless in every sense. Making art and engaging with art is one of the most human of all activities—transcendent and spiritual for many—and I have no idea why it would ever be outsourced to computers. One might as well suggest that the Buddhist set his mobile device in front of the alter to chant for him while he does something else with his body, mind, and hands.

When Henry Wallis revealed “Chatterton” at the Royal Academy in 1856, it caused a stir—both because it was considered a masterwork made early in the painter’s career, and because its romantic yet grim subject matter was viewed by many as a comment on the poor treatment of artists. Chatterton’s suicide by arsenic at the age of seventeen was believed to be at least partly the result of his abject poverty due to the failure of publishers to pay him for his writing. His “Last Verses,” found with his lifeless body, contain an 18th century version of the artist who was supposed to live on “exposure” rather than compensation.

Farewell Bristolia's dingy piles of brick,
Lovers of Mammon, worshippers of trick!
You spurned the boy who gave you antique lays,
And paid for learning with your empty praise.

Two and a half centuries later, “Lovers of Mammon” have invested billions in technologies and business models designed to devalue creative work and infringe copyright rights at massive scale. And now, we enter the next phase, when machines are being “trained” on volumes of human-authored works to potentially replace humans in the production of literary works, visual arts, music, and perhaps eventually, performing arts. And, as usual, the technology is advancing apace without any consideration as to whether it can reasonably be called progress.

Illustration by: zdeneksasek