Category: Law & Policy

The War on Smart Continues with Firings at the Library of Congress and Copyright Office

copyright

Since the election, I have been so certain these events were coming that I almost pre-drafted this post, but I didn’t want to be a jinx. Then when it did happen, I hardly knew what to say. Every day, we are confronted with evidence that the only agenda of Trump 2.0 is wanton destruction. I am increasingly convinced that Trump himself is a mindless wrecking ball set in motion by cyberlibertarians like Peter Thiel, animated by the “Dark Enlightenment” ravings of Curtis Yarvin, and determined to raze America and on the wasteland, erect their fever-dream of techno-feudalist “corporate zones.” Of course, I only think that because that’s what they explicitly said they want to achieve.

Last Thursday, around 7:00pm Eastern, Trump fired Librarian of Congress, Dr. Carla Hayden, and then, on Saturday afternoon, he dismissed Register of Copyrights and Director of the U.S. Copyright Office, Shira Perlmutter. So, the first conflict in this shit-show (maybe) will be jurisdictional. Although the Librarian is a presidential appointee, the Library and Copyright Office comprise employees of the Legislature. Thus, a president doesn’t necessarily have the authority to fire Copyright Office or other Library staff, and as of yesterday, Trump appointees, Paul Perkins as acting Register and Brian Nieves as acting Deputy Librarian, were both turned away from the Library according to a story in Wired.

Trump also named his former defense counsel and current assistant AG Todd Blanche as acting Librarian, and other reports on social media stated that DOGE employees arrived at the Copyright Office and were also turned away. So, this is now a right and proper clusterfuck wholly consistent with the Trump brand of governance. Whether Congress will assert its authority in this mess is this week’s question along with the other question: Why?  Why aim the Trump wrecking ball at the Library of Congress and the U.S. Copyright Office?

Dr. Hayden was a natural target for the hate-machine wing of the MAGAverse. She’s Black, an Obama appointee, and easy to accuse—and was accused—of fostering a “leftist DEI” agenda.[1] Notably, the White House email she received about her termination accused her of “putting inappropriate books in the library for children,” which is classic Trumpism—not only an invented allegation about Dr. Hayden, but one which highlights that these people have no idea what the Library of Congress is or does.[2]

Trump firing the Librarian of Congress is an attack on the institution consistent with other administrative attacks on cultural and scientific institutions throughout the country. Appointing a DOJ attorney to be acting Librarian signals hostility toward the purpose and meaning of the Library—a hostility in harmony with the rhetoric of Goebbels wannabe Stephen Miller, who talks about incubating a nationalist, “patriotic” culture. As any student of history knows, that’s a recipe for stupid—not just book stupid, but can’t feed oneself stupid. Today’s editorial in Time by Alondra Nelson, explaining her resignation from both the National Science Foundation and the Library of Congress, makes the point. She writes:

In both these roles, over the past few years, I’ve been asked to serve on diverse bodies that offer guidance about how the Executive and Legislative branches can be stewards of knowledge and create structure to enable discovery, innovation, and ingenuity. In the instance of the National Science Board, this ideal has dissolved so gradually, yet so completely, that I barely noticed its absence until confronted with its hollow simulacrum.

The Copyright Office Debacle

The day before Register Perlmutter was fired, the Copyright Office released a “pre-publication draft” of its third report on copyright and AI—this one addressing training AI models with protected works. Because the Office does not release “pre-publication” drafts, it was clear as of late Saturday, that the report had been quickly distributed ahead of the anticipated firing of the Register. In this regard, Shira Perlmutter is owed a debt of gratitude for publishing the Office’s statement at a time when over 40 lawsuits are asking the courts to weigh the issue of AI training with protected works. But why was the report controversial and a likely catalyst in Trump’s desire to fire Perlmutter?

The pending third report made the AI developers anxious because, as with any report of its kind, the Office would aim to provide guidance on the legal considerations and implications without necessarily choosing sides. The AI developers have been lobbying hard in the press, and with appeals to the administration, to argue that training AI models with protected works is per se fair use. Further, they have argued as a matter of national interest that “winning” the AI competition with China is too important to allow copyright rights to interfere. Not that there’s any merit to that claim, but between Trump’s addle-minded concept of nationalism and the fact that he’s elbow-deep in Big Tech’s booty, copyright interests have been anxious since the inauguration that he might stick his mittens into the mix.

Meanwhile, at the end of April, Tom Jones of the right-wing American Accountability Foundation told the Daily Mail that it was time Trump, “…show Carla Hayden and Shira Perlmutter the door and return an America First agenda to the nation’s intellectual property regulation.” So, in addition to being a general dickhead about “leftist agendas,” Jones reiterates the incoherent proposal that America can hope to “lead” in IP while its Executive promotes brain drain across multiple sectors and attacks independent thought and diverse creativity wherever it can. Because attrition like the resignation of Alondra Nelson is exactly how you lose in IP, in case anyone’s keeping score.

So, Dr. Hayden’s ouster, packaged in the rhetoric of “anti-DEI,” is an attack on yet another cultural institution (one that houses the world’s largest collection), while the broadside at the Copyright Office may be solely about the reports on AI. Regardless, Trump gets to feed red meat to the MAGA nationalists and his Big Tech patrons at the same time, and where we are now is a lot of uncertainty pending chaos. Further, if Trump 2.0 is indeed designed to soften the ground for a techno-feudalist makeover, then tanking the creative economy would fit that agenda, as would allowing AI developers to build whatever they want without oversight of any kind.

One can only imagine who an illiterate, demented, and seditious facsimile of a president would tap as the next full-time Librarian of Congress—my money’s been on Kid Rock since November—but it will likely be someone whose idea of a national library roughly matches Pete Hegseth’s comprehension of national defense. Everything about Trump 2.0 mimics weak, authoritarian nations, including the aforementioned effort to foster a nationalist culture. To achieve that aim, authoritarians will always try to exsanguinate the professions supported by copyright law while they destroy evidence of historical fact and scientific discovery—a narrative housed within and symbolized by the Library of Congress.

Not since the British torched the place in 1814 have occupants of Washington shown so much contempt for America’s genuine capacity for greatness. More profound than the hostile takeover of the Kennedy Center, removal of historical material from federal institutions and websites, or cutting the NEA budget, the concurrent dismissals of the Librarian and Register should be understood as an attack on the intent of the IP clause of the Constitution to “promote science and the useful arts.”

[1] As an aside, I criticized Dr. Hayden in 2016 for her improper and sudden ouster of then Register of Copyrights Maria Pallante, and I would likely still quarrel with her on that and other copyright matters today, but all that has nothing to do with these recent events.

[2] The Library houses the world’s largest collection of EVERYTHING. It is not comparable to a library in your local community.

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“Innovation” Doesn’t Mean Anything

"innovation"

Two headlines in the first week of this month said a lot about the United States as an “innovative” nation right now. One story announced that the first driverless semi-trucks are on the highway covering normal long-haul routes, and the second reported that the final shipments of pre-tariff goods from China were arriving at U.S. ports. Leave it to contemporary America to dispatch a new fleet of robot trucks just in time for the cargo containers to be empty. On the other hand, I guess it works out in principle because the unemployed truck driver won’t have money to buy the goods that won’t be on the shelves.

According to the tech-utopians about a decade ago, the displaced truck driver shouldn’t worry because he now lives in a world of abundance and can, at last, spend his days painting or writing poetry or making music with all the leisure time he now enjoys. Isn’t that what happened? Didn’t technology “innovate” that Keynesian promise of a social and economic golden age? Doesn’t look like it. In fact, we’ve even got machines to write poetry and make music, so the ex truck driver will just have to pound sand.

Big Tech historically calls everything it does “innovation,” allowing scant room for critique of a product’s pros and cons while labeling any policy that might protect some injured parties “anti-innovation.” Even where harmful results are identified and become the subjects of congressional hearings, the product makers effectively sell these “unintended” hazarrds as a price that must be paid for “more innovation.” And, by the way, that promised “age of abundance” will start any day now, if we are just patient and keep feeding the beast more data.

The Coalition for a Safer Web can describe in grim detail how social media and other tech platforms have “innovated” teen suicide, scams, and drug trafficking. Or the recent proliferation of AI “companion” apps (virtual girlfriends and boyfriends) has “innovated” new concerns among child psychologists—and these apps may also “innovate” new vectors for malware attacks. And, of course, increasingly realistic AI deepfakes may further “innovate” our fleeting grasp on reality, which has been essential to “innovating” American democracy to the edge of extinction.

Sporting the word “innovation” as a cloak for all manner of sins, the tech industry contends that the materials used to build the next generation of AI products (i.e., the works of artists and creators) are so essential for even more “innovation” that copyright rights must be disregarded. Elon Musk and Jack Dorsey even opined that the U.S. should simply abandon intellectual property rights altogether, and the industry rhetoric appealing to the current administration claims that copyrights must not hamper the national interest in “winning” the competition to build the “best” AI.

The folly of declaring an intent to “win the AI war” without defining what success looks like is consistent with U.S. tech policy for decades and with policy affecting all sectors, public and private, today. To call Trump 2.0 incoherent is too kind, as that term can imply well-meaning error when, in fact, the administration is engaged in a purposeful, multi-pronged attack on science and the arts in direct conflict with the intent of the progress clause of the Constitution.

Article I, Section 8, Clause 8, giving Congress the power to “promote science and the useful arts” by establishing copyright and patent laws was an expression of the Framers hope that the fledgling, agrarian nation might one day create great cultural works and inventions. But of course, IP law alone can’t do that. Quite simply, without the I, you ain’t got no P—and I is under assault in the United States. Brain-drain and chaos are now the hallmarks of every federal department from healthcare to defense, and in the private sector, Trump’s goons attack universities, the motion picture industry, publishers, authors, journalists, and scientists—literally anyone smarter than they are, which includes a lot of damn people.

“Innovation,” Copyright, and AI Training

Big Tech argues that all AI training with protected works should be exempted from infringement claims by the doctrine of fair use. Ordinarily, broad claims about fair use remain in the blogosphere while specific legal questions are weighed in court. But in regard to AI training, I worry that the general perception of the technology as “innovative” may result in overbroad application of “transformativeness” under factor one, which considers the purpose of a use.

For instance, Judge Chhabria, in last week’s hearing in Kadrey et al. v. Meta, stated that Meta’s Llama is “highly transformative,” which may signal an overbroad reading that synonymizes “transformative” with “innovative” while also eliding a thorough weighing of the extensive purposes for which the use is made. Or in a nutshell, how can a court fully consider the purpose of a use when the technology at issue is dynamic and open-ended?

As noted in an earlier post, landmark fair use cases have involved technologies that were complete models as facts presented to the courts—e.g., the VCR and the Google Books search tool. The court did not need to wonder, for instance, whether the purpose of Google Books—i.e., to provide information about books—might also be used to build an AI “psychologist” that may harm patients seeking mental healthcare. In fact, as The Guardian reports on this very issue, Mark Zuckerberg advocates “innovating” psychotherapy with AI “providers,” thus adding doctor next to historian, journalist, and constitutional scholar to the list of qualifications he lacks as he proceeds to break all things.

In this context, and with the recognition that Meta’s commercial interests entail application of its AI tools across many, if not all, initiatives in the company, what exactly is the purpose of Llama as weighed in a factor one fair use consideration? I’m not convinced the court can really know.

Beyond the Four Factors

When Congress codified fair use in the 1976 Act, it sought to convey over a century of judge-made law as statutory guidance, but beyond the four-factor test, “courts may take other considerations into account,” writes Professor Jane Ginsburg in a paper about AI and fair use. Indeed, she cites to the Google Books case, in which the court states, “the use provides a significant benefit to the public.” But with a product like Llama, where a court has reason to predict substantial crossover between socially beneficial and socially toxic purposes, how can a judge reasonably decide whether the purpose is “highly transformative” when the facts themselves are so ephemeral?

It is one matter for a court to consider the “transformativeness” of an AI built for a clearly defined purpose as presented, but it seems another matter if the technology has myriad purposes, including ones that will manifest after a case has been resolved. Whether Midjourney’s purpose to enable the production of visual works makes fair use of visual works in its training may be a sufficiently narrow consideration, but by contrast, an LLM developed by Meta is arguably open-ended development for purposes as yet undefined.

After all, Meta began with a college student ranking sorority girls and is now a trillion-dollar company that has altered the course of human history—and many of its “innovations” have had destructive results. In this light, the courts should decline to find “transformativeness” in the same overbroad spirit in which the tech industry wields the term “innovation.” Because without a clear definition and coherent law and policy, “innovation” is how we end up with a truck with no driver carrying a load of nothing to nobody.

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The Big Deal in Mahmoud et al. v. Taylor is The First Amendment

first amendment

The U.S. Supreme Court last week heard oral arguments in Mahmoud et al. v. Taylor—a case brought by three families petitioning, on First Amendment Free Exercise grounds, to have their young children opt out of class time involving age-appropriate books that depict homosexual characters. The families—one Muslim, the other two Catholic—are not seeking to ban the books or to amend the Maryland elementary school curriculum. Instead, they are suing to overcome the school board’s refusal to allow an opt-out in this circumstance.

Opting out might appear to be a modest request, and Amy Howe’s Scotusblog summary of oral arguments describes the conservative majority of the Court as sympathetic to the parents’ petition. “What’s the big deal about allowing them to opt out of this?” asked Justice Alito. Although an unsurprising comment from Alito, the big deal raises conflicts the Court may be inclined to ignore—but it should not.

The Petitioners Misrepresent the Facts

The first big deal is that by allowing the petitioners to opt out on First Amendment Free Exercise grounds, this would make doctrine from an improper reading of the facts before the Court. In order to object to the books on the basis of the Exercise right, the parents should be required to show that the books promote an ethical or moral viewpoint that is not only anathema to their beliefs but also show how mandatory classroom exposure to that viewpoint is an abridgement of their right of Exercise.

But that bar cannot be met based on the content of the books at issue. “One book describes the story of a girl attending her uncle’s same-sex wedding, for example, while another book, Pride Puppy, tells the story of a puppy that gets lost during a Pride parade,” writes Howe. It may be the case that in the minds of the petitioners, the books imply or impose a moral position on homosexuality, but in fact, the books at issue simply depict the world as it is—a world that includes gay people.

If the books “promote” any viewpoint at all, it is tolerance in general, and it is extraordinary for these families to ask the Court to find that tolerance is tantamount to abridgement of religious exercise. It is clear that many religious people feel this way, but if the Court sanctions this view, it will erode the Framers’ purpose in writing the Exercise and Establishment clauses—namely that religious tolerance in a nation as complexly diversified as the United States is necessary for ensuring domestic tranquility.

So, if mere tolerance is unacceptable for certain families, it is unreasonable for those families to expect the public school to accommodate this view—let alone find that failure to make that accommodation is an abridgement of the Exercise right. The American public school has a responsibility to provide curricula and materials in literature, science, and history that reflect the world as it is—indeed failure to do so would violate the meaning of education—and the world includes gay people. It is, therefore, not the job of teachers or administrators at a public school to help certain parents shield their children from this fact any more than they would shield a child from a book depicting a prosperous Black character because some family sincerely believes that non-White people are subordinates in the “eyes of God.”

An Atheistic Hypothetical Makes the Point

Although my atheism is not conditioned on the fact that I find many religious people to be morally objectionable, I nevertheless sincerely believe that many religious people are morally objectionable. In fact, I could cite centuries of history to support that view in contrast to the dearth of evidence the petitioners in Mahmoud might bring to show a similar pattern among associations of gay people. Regardless, if the Court decides in favor of these families, would it likewise find that my secular child may opt out of a lesson in which a storybook merely depicts a family going to church?

If this hypothetical children’s book does not preach, for instance, that churchgoers are morally superior to non-churchgoers, then the book simply depicts the world as it is—a world in which some families go to church. In this case, would the Court find, as it should, that I am overreacting by seeking an exemption for my child on the false interpretation that the book’s mere depiction of churchgoing is implying that her secular family is morally wrong?

If the Court would rule against me in this hypothetical, then its finding should be no different for the plaintiffs in Mahmoud. Further, if my child gleans from the storybook that she is expected to tolerate, if not agree with, the religious kids in her class, that is both a sound lesson and one that is conducive to the atmosphere necessary for teaching a roomful of young children. This is especially true where young children come from a diverse range of families, including the likelihood that one may be the child of same-sex parents.

We Cannot Each Be a Law Unto Ourselves

Although opting out of a kindergarten class is a small matter—indeed, the parents could have done so without literally making a federal case out of it—asking the Court to grant the exemption on the basis that compliance with the public-school curriculum is an abridgement of Exercise conflicts with precedent, and possibly in a new and dangerous way. As the court held in Reynolds v. United States (1878), and Justice Scalia restated in Employment Division v. Smith (1990), the Free Exercise Clause is not “a system in which each conscience is a law unto itself.”

Reynolds and Smith address matters of state abridgement of specific exercise (polygamy in the first instance, and peyote ritual in the second) as a question of balance with “generally applicable law.” In response to Smith, Congress and President Clinton passed the Religious Freedom Restoration Act (RFRA) to reset judicial review and reverse Scalia’s holding in that case. RFRA was subsequently key in 2014 to then Judge Gorsuch’s 10th Circuit holding that Hobby Lobby, a privately held company owned by devout Christians, may be exempted from certain birth control mandates in the Affordable Care Act.

But between Reynolds and Hobby Lobby, in addition to the shift from natural persons to corporations engaging in “religious exercise,” we also see a contrast between direct prohibition of specific conduct (polygamy) to a more nuanced concept of abridgement (compliance with federal insurance law). But even Hobby Lobby is narrow in contrast to the implicitly broad exemption being sought in Mahmoud.

It is clearly the view of many religious Americans—especially American Christians—that mere toleration of fellow citizens outside their orthodoxy is perceived as an infringement of their Exercise rights. Or as The Authors Guild states in its amicus brief in this case, “Petitioners argue that the mere exposure to books that represent this community violates their free exercise rights under the First Amendment….we are now at an especially fraught moment in our history, as book removal initiatives—couched as attempts to shield children and young adults from harmful subjects and dangerous ideas—are wreaking havoc on school districts and public libraries across the country.”

The Court should refuse to endorse this agenda with a poor reading of the Exercise clause. Not only would it be bad law, but it invites pedagogical chaos in public education and animates viewpoint extremism in general. After all, what are the boundaries for public-school parents to opt out, grade-by-grade, topic-by-topic, belief-by-belief—in a society increasingly belabored by subjective truths? The family who clings to the geocentric model of the universe, for instance, is at liberty to home-school or find a parochial option that fits their beliefs, but the First Amendment does not permit them to demand that the public school accommodate their personal brand of scientific ignorance.

Thus, if we look beyond kindergarten and the Court finds for the plaintiffs in Mahmoud, the disarray it prefaces in public schools may only be resolved by an unconstitutional cabining of the opinion as an exception for certain religious exercise—perhaps just the three Abrahamic religions?—which would be in conflict with the Establishment clause. And quite possibly, that is the underlying intent of this lawsuit: to frame tolerance of diverse beliefs as intolerance of a few preferred beliefs until the latter overwhelms the former.

In that regard, intolerance itself is, of course, part of the world as it is, and as children mature, the literature they read often deals directly with various forms of intolerance in books that some Americans have tried to censor. Any sincerely held belief, whether religious or irreligious, will eventually breed some measure of intolerance for the heterodox view. Some Christians believe that I am an emissary of the devil, and, in turn, I believe those people are howling-at-the-moon insane.[1] There is no reconciling our views of one another, and so, the constitutional Framers, keenly aware that such antagonisms tear nations apart, wrote the Establishment and Exercise clauses with the hope of fostering comity in the new nation. So, the big deal in this case is that at the very least, the Court should honor history and tradition by supporting public school teachers working to foster comity in the classroom.

[1] Expression by Aaron Sorkin, The West Wing.

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