Tag: Featured

Thinking About an Old Copyright Case and Generative AI

old copyright case

The first copyright case decided at the U.S. Supreme Court was Wheaton v. Peters in 1834. There were six justices at the time, including the oft-quoted Joseph Story, and in a 4-2 decision, the Court made what I believe was a textual and, therefore, doctrinal error. The allegedly infringed works at issue were published reports of the Court, and there was neither disagreement nor error in finding that the opinions of the Court themselves were not a subject of protection. Instead, the important question—a philosophical debate inherited from England’s 18th century copyright battles—was whether Article I of the Constitution empowered Congress to create rights or to protect rights that naturally existed at common law.

In finding the former, the Court erred in my view because its opinion turned on misinterpreting the word securing from the intellectual property clause in Article I, which states that Congress is empowered, “To promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The Court held that securing was a word of “origination,” establishing the doctrinal principle that copyright rights are “creatures of statute.”

The precedent in Wheaton has often been highlighted by anti-copyright scholars because it limits the notion that copyright rights are in any sense natural rights. This, in turn, supports the skeptical (I would say cynical) view that copyright is a devil’s bargain with authors, begrudgingly granting a temporary “monopoly” in exchange for production and distribution of their works. But aside from the fact that the Court of 1834 stated that the longstanding question remained “by no means free from doubt,” its textual interpretation of the word securing was simply unfounded.

As I discuss briefly in my book, there are at least two strong arguments against the Court’s finding that secure was a word of origination, and the first of these is the preamble to the Constitution. When the Framers wrote “to secure the blessings of liberty,” they can only have meant that the aim of the Constitution is to protect, ensure, or maintain that liberty which had so forcefully been articulated in ink and blood as a natural right of all people. The Framers did not mean that the Constitution creates the “blessings of liberty.”

The second argument is the dictionary. Noah Webster, who happens to be both the father of American English and the father of American copyright, was widely respected as a man of letters; as an effective voice for the natural rights of authors; and as the primary force behind the copyright law revision of 1831. Nevertheless, in defining the word securing in the Wheaton case, the Court somehow failed to harmonize its interpretation with any of seven entries in the 1828 edition of Webster’s dictionary. There, all definitions of secure express variations on the idea of “protection,” and none suggests that the word means “creation.”

Why does Wheaton matter today?

By misreading the meaning of secure, the Wheaton Court overstated a utilitarian view of copyright and understated the natural, common law (i.e., human) view of copyright. Granted, this tension dates back a few centuries, if one wishes to look that far, but it isn’t necessary to wander into the tall grass of pre-American history. There is ample rationale since 1790 to hold as self-evident that what the author creates is naturally her property, but this principle can only apply to human creators.

As mentioned, copyright skeptics, many who are either funded by or ideologically aligned with Big Tech, will overstate the precedent that copyright is a “creature of statute” because they like to propose that what Congress giveth, Congress can taketh away. For instance, Wheaton animated the “copyright is broken” campaign, which insists that technological progress in the digital age demands weakening protections on creative works to foster “innovation.”

This argument has taken various forms over the years, including justifying mass piracy; proposing that Congress should roll back the duration of protection; arguing the unconstitutionality of digital rights management; advocating extreme interpretations of fair use; and inventing legal theories like “controlled digital lending” for eBooks. These efforts have largely failed while Big Tech’s credibility has also diminished over the past decade. And indeed, despite the doctrinal weight of Wheaton, the legislative, judicial, and cultural record on copyright is replete with natural rights principles.

Still, although Big Tech does not enjoy the benefit of the doubt it did circa 2012, the commotion over generative artificial intelligence (GAI) reprises the familiar theme that copyright rights allegedly stand in the way of “progress.” In fact, one of the leading astroturf organizations promoting that view calls itself the Chamber of Progress, but the consideration about GAI in the creative community and beyond should respond that “progress” which proposes to displace or diminish human value is not progress.

As new technologies emerge and enter such central aspects of our existence, it must be done responsibly and with respect for the irreplaceable artists, performers, and creatives who have shaped our history and will chart the next chapters of human experience. – Human Artistry Campaign –

Big Tech surrogates like the Chamber of Progress will repeat the assertion that GAI “democratizes” creativity, which takes a lot of chutzpah coming from an industry that has done so much widespread damage to democracy. By now, it should be obvious that when tech companies claim to “democratize” anything, this smokescreen is disguising the fact that what they are usually doing is undermining the value of individual agency—from control of one’s likeness to copyright rights to political views. In other words, democratization has been bad for democracy.

The Wheaton Court of 1834 could not have imagined that the subject of common law copyright would be relevant 190 years later in context to a technology that can generate creative works without creative people. But human artistry is not strictly about art per se. It reprises the philosophical question as to what it means to be human, and if that answer begins with thought and knowledge, then we must recognize how democracies have been hammered by epistemic crisis since the explosion of social media.

Now that GAI is accelerating and expanding the power of misinformation, the human who encounters the AI generated lie must decide whether to believe what he sees, let alone to amplify the post. This is not merely a question of critical thinking, but an existential test that guys like Peter Thiel hope we fail. As many tech critics have repeated over the last 10-15 years, the design of these technologies—and indeed the stated intent of many of its designers—is that we become its tools rather than the other way around. And GAI has the potential to fulfill that agenda by more thoroughly blurring the line between reality and illusion.

The EFF Campaign Against DMCA Section 1201 Perishes in the DC Circuit

section 1201

The First Amendment protects the right to read books but not the right to break into a bookstore for the purpose of reading—not even if the goal is to quote a passage from a book in a manner that would be fair use under copyright law. The hypothetical, lawful use of the book’s contents to produce protected expression does not make the law prohibiting trespassing into the store a violation of the speech right. Most reasonable people can understand this distinction, but for about 18 years, the Electronic Frontier Foundation (EFF) has tried to prove that common sense is wrong.

Ever since literary works, sound recordings, audiovisual works, etc. went digital, the concept of “digital locks” used to protect lawful access to these materials has vexed the EFF, which launched a campaign and lawsuit in 2016 to prove that the law against breaking said locks is unconstitutional. Filing suit on behalf of researcher Matthew Green and product developer Andrew Huang, the EFF has argued that Section 1201 of the Digital Millennium Copyright Act (DMCA) violates the speech right because circumvention of technical protection measures (TPM) may sometimes be done to achieve forms of protected expression that would be defensible under the fair use exception.

TPMs generally consist of code used to enforce lawful access to digitally distributed works like eBooks or streaming services, and §1201 prohibits circumventing TPM and/or trafficking in devices primarily designed for circumvention. By law, the Librarian of Congress (really the Copyright Office) conducts a triennial rulemaking proceeding to consider applications for, and grant exemptions to, §1201 for purposes such as research and certain educational or journalistic uses of the encrypted works. You can read posts here and here for background on the EFF’s case, but the bottom line is that the appellate court last week soundly rejected the claim that 1201’s “legitimate sweep” functions as a “speech licensing” law.

Among the court’s determinations, it held that the government’s interest in preventing “digital trespass” properly restricts a wide range of conduct that has no expressive purpose; the First Amendment does not guarantee unfettered access to expressive works; the plaintiffs in name make no showing that their protected expression is being chilled; and the various hypothetical examples presented by the EFF are answered by legal forms of access to works that do not require circumvention of TPM. More than a few of the court’s responses demonstrate why the EFF has tried inaptly to portray an anti-trespass law as a speech law. For example…

A trespass law undoubtedly affects some expressive conduct, as when political protestors trespass to stage a demonstration where it might have maximal impact. Similarly, the DMCA’s anticircumvention provision might preclude a student from circumventing technological measures to cut a high-quality clip of a copyrighted feature film to use in his class presentation. But trespassing is not “necessarily associated with speech,” because laws prohibiting trespass also “apply to strollers, loiterers, drug dealers, roller skaters, bird watchers, soccer players, and others not engaged in constitutionally protected conduct.”

As the court explains, §1201 likewise applies to a range of parties with an interest in circumvention for both lawful and unlawful purposes, but expression is not the basis on which the law operates. Going back to the bookstore, it is simply illegal to break in at all, regardless of whether the intent is to read, cite a book, or ransack the place. The fact that the vandal will face charges not attributable to the reader has no bearing on the trespass violation they both committed.

I also want to highlight the court’s response to the allegation that the §1201 rulemaking process is itself an unconstitutional prior restraint on speech as indicative of EFF’s chronic misstatements about fair use. The court writes, “An irony of appellants’ challenge to the DMCA is that the triennial rulemaking exemption scheme—which identifies in advance and immunizes categories of likely fair uses—may be less chilling of the fair uses to which it applies than the after-the-fact operation of the fair use defense itself.”

In other words, arguing a fair use defense requires litigation and uncertainty in contrast to a rule by the Librarian that a given use has been granted an exemption. The Library has granted a broad range of exemptions to §1201, and as this opinion notes, an exemption granted to a single petitioner (e.g., a documentary filmmaker or teacher) applies to all parties in that class with the same interest in circumventing TPM.

Finally, the court concludes that the rulemaking proceeding is not above judicial review—that a petitioner who believes the Library has made a content- or viewpoint-based decision may still bring a First Amendment complaint to the courts on that basis, but this does not alter the finding that the law itself withstands constitutional scrutiny. Never say never, I guess, but I predict this alleged controversy is now a settled matter—that EFF has wrung all the value it can from this campaign and will need to find a new anti-copyright windmill on which to break its lances.

Did Big Tech Light the Dumpster Fire?

Big Tech

It is unoriginal to refer to Donald Trump as a useful idiot, but the question as to whose idiot invokes both plausible and fantastical theories combined with sundry lampoons on social media. That Trump is Putin’s lapdog, for example, remains a popular theme, but Gil Duran, writing for The New Republic, makes a solid case that Trumpism, and specifically the reinvention of J.D. Vance, is the playbook of Silicon Valley’s billionaire ideologues who avowedly hate democracy.

There’s a video clip I’ve scrolled by a few times recently in which Pete Buttigieg tells Bill Mahr’s audience that Silicon Valley’s pivot toward Trump is explained by the simple fact that “These are very rich men, and historically the Republican party benefits very rich men.” But as much as I admire Sec. Buttigieg’s intellect and style, I think Duran is closer to the mark when he describes men like Peter Thiel and Elon Musk as having plenty of money but now want all the power their money can buy. And not the kind of old-school power that merely influences policy to make them more money. Instead, the ambition of these tech oligarchs is ideological, arrogant, nutty, and possibly more dangerous than the hardline religious right with its fantasies of an American Christian theocracy.

“I no longer believe that freedom and democracy are compatible….Since 1920, the vast increase in welfare beneficiaries and the extension of the franchise to women — two constituencies that are notoriously tough for libertarians — have rendered the notion of ‘capitalist democracy’ into an oxymoron.” – Peter Thiel, CATO Institute 2009 –

Duran, in his article published on July 22, describes the relationship between Thiel, Vance, and the “house philosopher” of Thiel’s inner circle, a software engineer and apparent kook named Curtis Yarvin. Yarvin advocates a techno-feudalist future, which Duran describes thus:

Among other things, it openly promotes dictatorships as superior to democracies and views nations like the United States as outdated software systems. Yarvin seeks to reengineer governments by breaking them up into smaller entities called “patchworks,” which would be controlled by tech corporations.

It’s the stuff of dystopian sci-fi movies and should be dismissed as raving but for the fact that Thiel et al. take this shit seriously—and Thiel is the money and force behind the metamorphosis of JD Vance from ordinary Republican into the automaton Veep nominee parroting “ideas” that are blatantly unconstitutional. In this light, then, should we read Vance’s outlandish, Trump-like provocations as part of the Pay Pal Mafia’s ground-softening campaign? Because if one sincerely believes in a plan to reengineer society into a corporatized “patchwork” as described above, one must first convince some of the population to get comfortable with creeping authoritarianism. Or perhaps it is sufficient to simply make enough people uncomfortable with republicanism—a disorder that I maintain social media has fostered across the political spectrum.

In 2012, writing about the technological singularity, I asked, “What if what’s really happening is that technologists with the power to design these life-altering systems have intellectually and spiritually moved beyond the idea that the human individual has much, if any, value?  In this case, it would be obvious that the rights of an artist, for example, would indeed look like a trifling glitch in the design that ought to be routed around like a bad line of code. After all, what right has the individual to assert his uniqueness in the march toward utopia?”

Let’s return to 2011/12, when Democrat, Republican, and Independent alike generally believed that social media companies, proclaiming themselves guardians of the speech and press rights, had provided the antidote to all corporate and government corruption. Google et al. preached the gospel that the “free flow of information” online would break the major media corporations’ “monopoly” control of news and cultural “content.” This populist notion fueled the anti-copyright/pro-piracy agenda, which should not be read as a story about copyright per se because the subtext of the gospel was that individuals with their pesky rights in their own work products were not going to stand in the way of a new world order. Silicon Valley wasn’t saying this overtly of course. On the surface, the message was egalitarian—a moral mandate to disrupt (i.e., “democratize”) everything, and this is still a key talking point in the PR about the alleged importance of Gen AI.

I have said it over and over—and I’ll say it until the internet breaks:  the major significance of Silicon Valley’s deceptions in beating back the anti-piracy bills SOPA/PIPA in early 2012 was that it signaled a new insidious form of corporate manipulation of American politics. And at Google scale. The industry and its acolytes at the EFF et al. weaponized the rhetoric of “democracy” (namely the speech right), not simply to lie about bipartisan legislation, but to assert the primacy of online platforms over the traditional institutions of government. The message was, “YOU did it! YOU saved the internet!” Of course it was all bullshit. And at Google scale.

We may ridicule Trumpians today for “doing their own research” to support wild conspiracy theories about vaccines etc., but let’s not forget that time when “liberals” sported or cheered for the “Guy Fawkes” mask from V for Vendetta as if that ahistorical symbolism somehow represented a new tech-enabled form of “speaking truth to power.” In reality, of course, all that “hacktivism” was simultaneously eroding faith in real participation in government while feeding Big Tech the data it needed to arrogate political power to its private club of Ayn Rand Übermenschen.

Recognition that social platforms were toxic, particularly after the election in 2016 of a president who lies with every word, led to a fleeting moment of navel-gazing  dubbed the “techlash.” Whistleblowers and Silicon Valley defectors came forward to affirm that social media induced harms were not a bug but a feature. “Profit over safety” was the general message Frances Haugen brought to Congress about Meta, and lest we forget, Mark Zuckerberg’s only answer was that Meta’s investments in “artificial intelligence” would fix everything.

I get that this begins to sound like conspiracy theory itself but for the fact that, as Duran reports in his extensive coverage, individuals like Thiel, Musk, Ray Kurzweil et al. have unwaveringly advocated strange and dystopian “visions” for the future of humanity. As this story in the Washington Spectator describes…

Dr. Timnit Gebru, a prominent AI researcher fired from Google in 2020 for speaking up against what she perceived as the company’s lack of proper ethical guardrails, has partnered with other researchers and philosophers to coin the (somewhat unwieldy) acronym “TESCREAL” to describe the overlapping emergent belief systems that characterize the contrarian, AI-centric worldviews challenging progressivism. It stands for: Transhumanism, Extropianism, Singularitarianism, Cosmism, Rationalism, Effective Altruism, and Longtermism.

Speaking as a secularist with a disdain for magical or spiritual thinking that borders on hostility, I admit to harboring an innate distrust of all isms. But uber-wealthy, smug tech-lord isms are acutely concerning because those are the beliefs of men who own or control the major modes of communication, which transform even criticism like this post or one of Duran’s articles into data that can be used to alter the course of history. Thus, when Vance insults Simone Biles or Trump is an asshole at the NABJ Conference, all the posts about those moments—even the outrage—feeds a dataset that can be used to keep unraveling core faith in the Republic. As useful idiots go, Trump has always been prêt-à-porter for any powerbroker who wants to ratfuck America. But the notion that Vance the Berserker, unrecognizable to his old friends, was forged in the crucible of Thiel’s world view makes too much sense to ignore.