Category: Information

Recent AI Copyright Lawsuits Are About More than Compensation for Authors

Last week, writer and broadcaster Andrew Keen invited me to his podcast Keen On to talk (of course) about artificial intelligence. When we got to the subject of the New York Times lawsuit against Open AI and Microsoft, I noted that 1) it is arguably the strongest copyright case presented to date against an AI developer; 2) that it would likely result in a substantial licensing deal between the parties; and 3) that it is hard to say what any of this means for journalism going forward. On that same subject, nonfiction authors Nicholas Basbanes and Nicholas Gage filed a class action suit against Open AI and Microsoft on January 5, just over a week after the Times suit was filed.

As discussed in other posts, although generative AI unequivocally poses a threat to authors and authorship, U.S. copyright law is, oddly enough, not quite designed to address the full scope of the social, economic, and cultural challenge of that threat. While this seems counterintuitive, the difficulty lies in the fact that copyright promotes authorship by protecting works against specific means of infringement, and the nail-biting question of the moment is whether “machine learning” (ML) with the use of protected works violates the reproduction right (§106(1)) of the Copyright Act.

Here, the Times case is strong because the news organization presents compelling, side-by-side evidence that its published stories are being output by ChatGPT almost verbatim. This is evidence that not only is reproduction occurring in the AI model, but that the outputs provided to users serve as a substitute for legal access to the Times’s material. The evidence of reproduction establishes a solid claim of infringement, while the evidence of substitution goes against Open AI’s putative fair use defense. In fact, it was the same circuit (the Second) which held that a news service called TVEyes was “slightly transformative” but that it made so much of Fox News’s material available, even in segments, that the substitutional purpose doomed its fair use defense.

Unlike the Times, the nonfiction book authors do not present side-by-side evidence of verbatim copying of their published writings, and this is consistent with some of the other class-action suits. These are the real nail-biter cases, in my view, because the plaintiffs’ cause is just, but their proof of copyright infringement is less demonstrable than the Times (or the Concord v. Anthropic case for that matter). But this focus on both The New York Times and nonfiction authors raises a serious question as to whether AI will exacerbate the already dismal state of information in the information age.

When the early work of this blog started in 2011, one of the issues of concern was the volume of mediocre, careless, or inaccurate reporting and commentary being promulgated under brands normally associated with quality journalism. Here, it must be said that the Gray Lady herself has not always been immune to the digital-age forces of volume and speed that can drive reporters and editors to engage the market on the lowest rungs. But if the stodgy algorithms of social media have animated a new era of yellow journalism, isn’t it reasonable to assume that certain generative AIs will make matters worse? The internet has already fostered more misinformation than a democratic society can safely endure.

If we consider the possible outcomes of the Times lawsuit, one would be that Open AI changes the model to avoid infringing reproduction. While this may satisfy from a copyright perspective, one wonders about the quality and/or purpose of the information being provided by a tool like ChatGPT.  The output of an LLM is the result of probability. The user asks a question (a prompt), and the AI responds that in all likelihood, based on the information fed into an algorithm, this is what you want to know.

It is no wonder the system to date reproduces material verbatim from a major news organization, but if it doesn’t do that, what should it do? Or what can it do that can be called “progress” with regard to news and information? Take a multi-faceted, extremely emotional topic like Israel and Palestine, train an AI on all the solid reporting, all the mediocre editorials, and the cacophony of opinions on social media, and the user of the LLM gets…what? Why would the results be more informative or thoughtful than the veteran journalist doing her best?

Why won’t an AI be worse than “recommendation algorithms?” If YouTube and Facebook foster confirmation bias and shepherd people onto the wild grazing fields of organically grown conspiracies, it seems rational and prudent to assume that an LLM will do the same thing more efficiently. Why have an old-school search engine point you toward a bogus article linking vaccines to autism when you can have a “dialogue” with an ersatz intelligence on the same topic?

Although the nonfiction book authors do not present the kind of evidence of copyright infringement the Times exhibits in its complaint, the facts presented about the authors’ investment of time, expertise, and money makes a point that should be read as more than a mere plea for sympathy. This is not just about job loss for future historians but quite possibly about the loss of history itself.  From the Basbanes et al. complaint:

The archive of primary research materials assembled by Mr. Basbanes in support of his work over a period of forty years, when acquired by Texas A&M University in 2015, filled 365 packing boxes with documents, transcriptions, drafts, field notebooks, photographic negatives, and the like, all acquired by Mr. Basbanes in pursuit of his literary activities, and at his expense and initiative.

It is more than a legal (i.e., fair use) question whether the purpose of a model like ChatGPT is to make new and relevant use of all that work, or whether its purpose is to supplant the historian and the reporter by “feeding off the sere remains of the past,”[1] until it eventually starves. In the former case, licensing and collaborating with authors and journalists seems reasonable, in the latter case, allowing certain generative AIs to die on the vine seems imperative.

[1] From Ralph Waldo Emerson’s speech at Harvard calling for an American literary independence, August 31, 1837.

Photo by: Antonio83

Facebook Blocks Oz. But Why Shouldn’t Platforms Pay for News?

This week, Facebook made good on its threat to block Australian news media on its platform. “Australian users cannot share Australian or international news. International users outside Australia also cannot share Australian news,” MSN reports. The move by the social giant is a hardline tactic designed to make the Australian government blink on proposed legislation that requires both Facebook and Google to pay for Australian news media that are shared across the platforms. Google reportedly has entered into agreements in recent days. For an in-depth analysis, especially from a global trade perspective, see Hugh Stephens’s post.

But acknowledging that the details are somewhere between opaque and invisible in the Facebook v. Oz story, I fail to see why the principle itself is terrribly flawed. Why shouldn’t the major online platforms pay for news media?

Google and Facebook (and potentially other platforms) derive substantial value from all those news stories that are shared across their platforms, but which others produce—often at great cost. Nevertheless, Facebook asserts that it does not need the news media as badly as the news media needs its platform. Perhaps that’s true. But in a statement released this week about the blocking decision, Facebook stated, “This is not our first choice – it is our last. But it is the only way to protect against an outcome that defies logic and will hurt, not help, the long-term vibrancy of Australia’s news and media sector.”

Combine that remark with the familiar generalization that the Australian proposal “misunderstands the internet,” and we are left to wonder if those are Facebook’s best arguments against the proposal. Because if the platform giants have ever been the least bit concerned with the “long-term vibrancy” of the news or any other media producing sectors, they must have been tripping balls when they built their business models. The underlying principle of every major online provider since roughly 2000 has been to monetize the flow of content produced by parties other than the platforms themselves.

Whether it’s someone making a joke or sharing a news story from the Washington Post, it’s all just data flow to Facebook. Very valuable data flow. And while we ordinary users may have volunteered to share personal comments or photos on the platform, the journalists whose salaries depend primarily on advertising revenues, did not voluntarily enter into the arrangement. While I recognize that the devil is in the details as to where the money will end up (i.e. does it pay journalists?), the underlying principle still seems sound.

Is really such a radical proposal that Facebook and Google (and potentially others if they achieve certain scale) pay negotiated fees to news producers? Certainly, the existing model has not done journalism much good, so why must we conclude that more of the same is necessary for the “long-term vibrancy” of the industry, as Facebook puts it? I noticed that Techdirt’s Mike Masnick tweeted his endorsement of Facebook’s rebuke to Australia, opining that the proposed legislation is just corporate welfare for Rupert Murdoch.

Admittedly, I find it difficult to defend journalism so broadly that it encompasses the work product of the Murdoch empire, but Masnick’s response is not wholly satisfactory to the question. What Facebook in particular has done to news—including where it has siphoned off revenue streams—has largely exacerbated the plague of alternate realities now threatening to unravel democratic societies worldwide. More specifically, to the extent that Masnick’s comment represents Facebook’s view, it obscures a much bigger truth:  that the major platforms have long been subsidized by the creators of works in nearly every field. That’s corporate welfare.

If the quotes listed on Yahoo! Finance, or the comments in this BBC piece are any indication, Facebook’s decision is not earning the company any goodwill—particularly in the middle of a global pandemic and brushfire season in Australia. And that’s on top of the fact that Zuckerberg & Co. have so reliably equivocated in its responding to demands to remove toxic disinformation and propaganda. “Well, that’s a tantrum. Facebook has exponentially increased the opportunity for misinformation, dangerous radicalism and conspiracy theories to abound on its platform,” said Lisa Davies, Editor of the Sydney Morning Herald, in response to the Facebook block.

Assuming the Australian proposal is a first test, it will be one to watch. There should be little doubt that if the platforms have to start paying for news in Australia and then the EU, we will see proposals to do likewise in the U.S. And that probably scares the hell out of Facebook and, perhaps Google as well. Presumably, Facebook will argue that the portal they built is so essential that they should not have to pay for any of the content that flows through it. But that seems about as irrational as saying that journalism itself is so important it should be free. Besides, I seem to remember a saying about great power coming with something. What was it again?

About That McCloskey Photo

There are a lot of posts going around lately about that photo. You know the one. It depicts St. Louis attorneys Mark and Patricia McCloskey standing locked and loaded—he with an AR15, she with a Bryco Model 38 handgun—in front of their large house on the afternoon of June 28th. That was the day when approximately 500 protestors, in response to the murder of George Floyd, entered a private, gated neighborhood and passed the McCloskeys’ house on their way to protest outside the home of St. Louis Mayor Lyda Krewson. According to one ABC News report, the couple grabbed their weapons “when two or three protesters — who were white — violently threatened the couple, and their property and that of their neighbors.”

While that factual allegation begs many questions, I shall avoid litigating the McCloskeys’ decision to brandish firearms in this instance other than to say that they made a conscious choice to do so with a very reasonable expectation that their actions would be recorded by a multitude of cameras. One of these was the camera of professional photographer William Greenblatt, who captured the image that truly made the McCloskeys famous, or infamous depending on one’s point of view.

The reason I’m writing about it on this blog is that headlines and comments report that the McCloskeys are suing Greenblatt for, among other things, the “copyright in the photograph.” Their complaint appears to be a counter-suit in response to the fact that Mr. Greenblatt sent the couple an invoice for $1,500 after they made unlicensed reproductions of the photo for this year’s McCloskey Christmas card (jolly, no?).

The named defendants in the suit include Greenblatt, United Press International (UPI), and a company called Redbubble, which apparently licensed Greenblatt’s image to reprint on merchandise that, as one might imagine, lampoons the couple. So, now we have a ballgame. But if we separate the volatile, emotional issues surrounding these events, what are the legal aspects in this little pissing match on the Mississippi? And before I go there, let me stipulate that despite my own impression of the McCloskeys as ridiculous figures, I acknowledge that photographs can be very deceptive storytellers, even images that appear to say precisely what Greenblatt’s photo appears to say in this instance.  

The McCloskeys filed a litany of right of publicity (ROP) complaints in Missouri State Court. Missouri recognizes common law rights of publicity as intertwined with the right of privacy, and the McCloskeys are suing the co-defendants for reputational harm and emotional distress stemming from the exploitation of the photo and the associated public ridicule. Among the forms of relief they ask for is “an order transferring ownership of the Photo and any other media captured while trespassing ….”

The complaint rests substantially on the allegation of trespassing, which is an invasion of privacy; and, as a technical matter, Greenblatt and the protestors were supposedly doing just that. The protestors reportedly broke down a gate and entered a private community—an accusation* that has given many gun rights advocates grounds to argue that the McCloskeys acted properly.

But regardless of the presumption that all 500 protestors were, strictly speaking, trespassing on a private road, Greenblatt was there as a photographer, documenting events as they happened. He has the right to follow a story almost anywhere it leads. And whether more Americans applaud or scorn the McCloskeys’ decision to bring out their guns, even if Greenblatt was standing on private property, doesn’t necessarily matter. What the McCloskeys did constituted a newsworthy event that Greenblatt captured, as did hundreds of other amateur photographers.

So, to the extent that an invasion of privacy could undermine the photographer’s right to capture the image in the first place, it strikes me that the trespassing would only be relevant if the protestors intentionally drew the McCloskeys from their home with the purpose of making them feel threatened and ridiculed, and that Greenblatt capitalized on that intent, as the complaint almost seems to imply. I am speculating here, as I am hardly versed in Missouri ROP case law, but I suspect that Greenblatt’s press right to capture a newsworthy moment will ultimately prevail (if this case even proceeds) over the allegation that he intentionally trespassed with the purpose of exploiting the McCloskeys for his own financial gain.

The facts as we know them support the narrative that the McCloskeys reacted to the protestors (a subgroup in a nationwide protest), who were walking past their home, and Greenblatt merely photographed the couple once they engaged in voluntary conduct in plain view of several hundred people. The McCloskeys’ decision, right or wrong, was no longer private. On the contrary, it was destined to be national and international news the moment they stepped outside, unless one can reasonably believe that they were somehow unaware that nearly every protestor would be carrying a camera.

That Greenblatt’s newsworthy photograph, among many others, went viral online—and inspired a whirlwind of ridicule—should not be a matter of Mr. Greenblatt’s liability or anybody else’s. Further, it strains reason to believe that the McCloskeys consider the image wholly damming if they really did use it to make a Christmas card. At best, this implies that they do not really mind the image itself, as long as they can try to control its interpretation in a flattering light. If that is their intent, this would be one reason why the couple would seek transfer of the copyrights in the image.

But aside from the fact that there is no controlling how the public will interpret any image, the negative perception of the McCloskeys was likely formed within minutes after their gun-toting images appeared online. Regardless, what the McCloskeys did was significant news. And even in most cases where the invasion of privacy is more aggressive, and the photograph taken is less newsworthy (e.g. paparazzi hounding certain celebrities), courts tend to favor the photographer’s right to capture and distribute the image. 

Overall, I suspect the St. Louis couple is about to learn that the subjects of photographs very rarely have any right to control the use of those photos, and that the prospect of obtaining the rights to Greenblatt’s photo as a remedy to their ROP complaints is quite low. That said, there may be a legal path forward on the merchandise aspect vis-à-vis Redbubble because the merch in this case implies extended public ridicule for commercial gain, a subject that may deserve deeper consideration in principle.

After all, if instead of ridiculing the McCloskeys for engaging in conduct that many people find absurd, we were talking about selling merchandise with an embarrassing Emma Watson photo to consumers who hate her for her outspoken feminism, we begin to see how this kind of image exploitation can be rather disquieting.

It was inevitable, living in an age of self-surveillance with a networked camera in every hand, that we would increasingly see stories that convoke the common law rights of publicity and privacy with the federal rights of press freedom and copyright. And while the McCloskey lawsuit may prove fairly straightforward for the reasons stated—and it barely has anything to do with copyright—some of this story’s themes are reprised in a much more complex narrative unfolding with regard to celebrities and photographers whose pursuit of their image push the boundaries of stalking. I will try to make that the subject of a post in the near future.

*Originally published as “a fact that has given…” Thanks to reader David Carson, photographer at the St. Louis Post-Dispatch for sharing this video link showing the manner in which the protestors entered the community.