Tag: Featured

Court Demolishes Texas Book “Rating” Law

In the 1980s, the Parents Music Resource Center (PMRC), led by Tipper Gore and several other wives of Washington insiders,[1] sought to compel record labels to place stickers on albums warning consumers that the songs within contained “explicit lyrics.” Songwriters, including Frank Zappa, John Denver, and Dee Snider testified in Senate hearings to oppose the label initiative on First Amendment grounds, but in the end, the RIAA agreed to voluntary use of the labels. Predictably, the result was a lot of ridicule of the now defunct PMRC, and the warning labels mostly served to make the albums more attractive to listeners.

Today’s self-appointed defenders of children against “dangerous” cultural material are more aggressive and mean-spirited than the PMRC and, it appears, more incompetent. Both the tenor and the incompetence were recently highlighted in a 59-page opinion handed down by the District Court for the Western District of Texas, eviscerating a law, unironically called READER,[2] that would have required book vendors to engage in a complexly incoherent rating scheme.

The complaint, filed by Book People, Blue Willow Book Shop, American Booksellers Association, Association of American Publishers, Authors Guild, and Comic Book Legal Defense Fund, alleged that, if enforced, the Texas law would violate the First and Fourteenth Amendments. Plaintiffs won a summary judgment on all questions of law, and the state is enjoined from enforcing READER as of the September 18 decision. In sum, Judge Allan D. Albright, a Trump appointee, stated, “READER’s requirements for vendors are so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.”

That is a sober and sobering assessment of the provisions, which appear to have been designed not to reasonably assess books for age appropriateness in school settings, but to ban the sale of certain books by erecting a thicket of compliance too dense and jagged to navigate. Either that, or the law was pure theater and never meant to be enforced because it is so unwieldy. Judge Albright’s opinion is rich with pull-quotes criticizing a law that would have burdened vendors with extraordinary expense (in the millions of dollars) to analyze their catalogs according to undefined terms and methodologies…

The lack of any blueprint for the Plaintiffs to follow creates a blunt reality that under this scheme it is guaranteed that different book distributors and sellers will arrive at different assessments with respect to hundreds if not thousands of books.

Plus, the inevitably broad range of interpretations and applications of READER would be further exacerbated by the authority of the Texas Education Agency (TEA) to overrule a vendor’s rating without any clear guidance or process for appeal…

There is precious little if any language in the statute to ensure that any decision made by the TEA with respect to the rating of any book will be any more ‘accurate’ (whatever that means) allowing for the enormous possibility if not probability that it will be entirely arbitrary and capricious (at best). In other words, vendors must decide between either accepting the state administrative agency substituted speech as their own or being effectively blacklisted.

Specifically, if READER were to be enforced, book vendors would have been required to rate both their current catalogs and “books in active use” according to new state standards for “sexually explicit” and “sexually relevant” material. Given the current climate flush with politicians who routinely conflate sexual identity with sexual conduct, it takes little imagination to guess at the Texas legislature’s intent with a vague category called “sexually relevant.”

For instance, how might a vendor be expected to rate my friend J. J. Austrian’s book about two earthworms getting married when there is no sex in the story at all? Although Worm Loves Worm may be read as allegorical support for same-sex marriage, does that subjective reading make the book “sexually relevant” in some administrator’s mind? J. J. said during our podcast interview that most kids don’t even pick up on a “gay marriage” metaphor—earthworms are hermaphrodites after all—which suggests that adults who have banned the book are likely poor readers of both the story and the intended audience. Now, imagine being a vendor and trying to rate hundreds or thousands of titles in context to the “community standards” of all the disparate communities across the State of Texas. “It is an open question whether this community standard is based on Austin, Texas, or Onalaska, Texas—or any of the more than 1,200 incorporated municipalities across Texas,” the opinion states.

There are too many moving parts in this judgment to discuss in one post, but I think the bottom line is that laws like READER aren’t about protecting children, or even about notifying parents about content, as the PMRC intended. While any state has a right and authority to erect a system for vetting materials purchased by its schools, sloppy, overbroad, Catch-22 laws like READER, especially in the current climate, are arguably about little more than hating gay and trans people.

I would challenge anyone to find young children’s literature that contains “sexually explicit” material, as defined by law[3] or common sense, let alone find the mythical Anais Nin picture book in a school library. On the other hand, if “sexually explicit” or “sexually relevant” are terms that Texas lawmakers intended to encompass stories in which a character has two dads, or stories about young people struggling with gender identity, those terms are as illiterate as they are constitutionally unworkable.

For as long as I’ve been politically conscious, “conservative” Americans have claimed to oppose the nanny state and to value individual effort. So, maybe parents who don’t want their children reading certain books can stop asking the state to do their parenting for them, read the damn books themselves, and make the individual decisions they deem necessary. Because there is a world of difference between a personal choice to restrict access to a book for one’s own child and demanding that a book disappear from the shelves for all children. Fortunately, the latter can rarely be achieved without violating the Constitution.

[1] Also Susan Baker, Pam Howar, and Sally Nevius.

[2] Restricting Explicit and Adult-Designated Educational Resources Act

[3] “The Miller test [for sexually explicit material] requires the following elements: ‘(a) whether the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’”

Photo by: shutter2u

Chabon v. Chatbot:  About those ‘Shadow Libraries’

As many readers already know, another class-action lawsuit was filed on September 8 against OpenAI by book authors Michael Chabon, David Henry Hwang, Matthew Klam, Rachel Louise Snyder, and Ayelet Waldman on behalf of all authors similarly situated. The allegations are almost identical to the complaints in other class-action suits against various AI companies. I won’t repeat what I have already written about each allegation, but once again, I predict that if the court does not find unlawful reproduction in transient copies necessarily made in RAM, Open AI will likely prevail. Once again, this complaint alleges that the GPT model itself is an unlicensed “derivative work” of the entire corpus of books fed into it, but this does not seem to be a well-founded implication of the derivative works right under copyright law.

But one aspect of this complaint (as well as Tremblay et al.) is that Open AI is alleged to have obtained part of its database from known pirate repositories. In reference to one of the datasets used to train Chat GPT, the Chabon complaint states, “the only ‘internet-based books corpora’ that have ever offered that much material are infamous ‘shadow library’ websites, like Library Genesis (“LibGen”), Z-Library, Sci-Hub, and Bibliotik, which host massive collections of pirated books, research papers, and other text-based materials. The materials aggregated by these websites have also been available in bulk through torrent systems.” So, is the act of exploiting illegally obtained materials in this manner a violation of law?

Certainly, the Copyright Act does not address the issue. There is language about “lawfully made” copies in the context of first sale doctrine and certain exceptions for libraries. The only two uses of the words “lawfully obtained” in Title 17 pertain to acquisition of a computer program and permissible circumvention of technical protections for research purposes. So, nothing in the Copyright Act makes Open AI’s scraping “shadow libraries” an infringing act on its own, and there is no language in §107 on fair use that refers to lawfully making or obtaining material(s). This would be anathema since a fair use defense implies an unlicensed use.

Still, it seems wrong (probably because it is) to profit by exploiting another party’s unlawful possession of valuable materials. Under the criminal code (Title 18 §2315), it is a “federal offense to receive, possess, barter, sell, or dispose of stolen property with an aggregate value of $5,000 or more if the property crosses state lines.” The statute refers to physical property and not to exploiting databases full of pirated material. But if an AI developer knowingly exploits repositories replete with unlicensed copies of works, doesn’t that sound like it should be illegal?

This discussion reminds me a little bit of the rationale for the Protecting Lawful Streaming Act of 2020, which elevated the unauthorized public performance of works via streaming from a misdemeanor to a felony. After years of debate—and allegations by anti-copyright groups that felony streaming would be disastrous—Congress recognized that unlawful streaming is effectively a digital-age version of mass bootlegging physical copies, which had long been a felony. In fact, streaming is worse because it can reach a much larger black-market than any bootlegger distributing physical products ever could.

So, under a similar rationale by which Congress recognized that streaming digital repositories of unlicensed works is a felony, perhaps lawmakers might broaden the intent of Title 18 §2315 to prohibit mass exploitation of digital warehouses full of illegal copies of copyrighted works. Certainly, these warehouses contain materials with aggregate values in the tens of millions of dollars. Hence, any party that knowingly exploits these warehouses for financial gain might reasonably be liable under the criminal code.

Authors and artists are justifiably angry that their works are being used without permission to train generative AIs. And the fact that Chat GPT was allegedly trained in part with corpora of literary material acquired and stored by media pirates is salt in the wound to say the least. I don’t know what, if any, legal remedies might be proposed, but I am confident that it is generally wrong to profit from the intentional use of ill-gotten goods.

Photo by: onephoto

Generative AI Goes to the Opera

I think music is the purest artform because it is uniquely capable of provoking strong emotional responses without necessarily conveying meaning or information. Yes, one could say the same thing about abstract visual art, but I think the brain is hardwired to at least try to read meaning in visual expression and that this is not so with instrumental music. Moreover, I don’t think any medium is so universally provocative of human emotion as music.

It is admittedly cliché to talk about operatic arias provoking tears, but in my experience, they really do. In fact, one of my favorite arias is about a tear, aptly entitled “Una Furtiva Lagrima” (One Furtive Tear) from Gaetano Donizetti’s 1832 opera L’elisir Di Amore (The Elixir of Love). I do have a personal relationship with this song because it was first introduced to me by my late father-in-law, a tenor who sang with several U.S. opera companies, served as artist in residence at The Israeli Nation Opera, and sang for Pope John Paul II in 1988. I wish had a digital version of his “Una Furtiva Lagrima” to share because it is, in classical terms, the shiznit.

But I was thinking about that aria for this post because, notwithstanding the familial connection, nothing external to the music influences its effect on me. I am not an expert on opera or Donizetti, and I do not fully understand the Italian libretto. Hence, the mechanics by which the score and the tenor’s performance reach through this curmudgeon’s crusty exterior to trigger an emotional response can be boiled down to a science, which means that a similar experience can be created by a generative AI. And so, the elephant in the room asks the obvious question:  Will the provenance of a work matter to the people who experience it?

I recognize that music by generative AI is already responding to this question, but these early sprouts in the market do not tell us what the broader cultural effects might be in a future without Donizettis, Domingos, or orchestras. One valid prediction could be that it won’t matter to the audience experiencing the music whether it was generated by a machine or another human. If a song produces spontaneous tears or laughter or a desire to dance, then who cares if it was made in a lab rather than by charming Liverpudlians sweating it out in a London studio?

Most Artists Are Not Performers

This conversation requires that we make a distinction between performance and composition. In other posts, when I’ve scorned the idea of machines replacing artists, I have generally referred to performance and drawn analogies to sports. One that seems to resonate in conversation is my NASCAR example because this is basically watching machines move in circles and waiting to see which machine finishes the requisite number of circles first. This lifeless description makes the point that without the people in the drivers’ seats and pit crews—humans who are largely hidden from view during the race—NASCAR would be about as interesting as watching an oil pump bob its mechanical head at the ground.

I believe our desire, or need, to experience performance—whether it’s Blake Morgan playing his music or Coco Gauff winning the Women’s US Open—mitigates AI’s power to usurp the role of many artists. But if this is true, the rule only applies when composition and performance are deeply intertwined, as with singer/songwriters like the recently late Jimmy Buffett. An AI “Caribbean-Drunk-Rock-n-Roll-Music”[1] generator could never foster the whole experience that became the Buffett brand. But could this ersatz “Margaritaville” mixer compose the equivalent of a new “Come Monday,” and if so, would it matter to future listeners who have no idea what the AI “learned” from Jimmy?

Most creators are “composers” and not “performers,” often as removed from the audience experiencing their work as I am from Donizetti while listening to his aria in 2023. And frankly, Donizetti, who died in 1848, is hardly more obscure to the average listener than Rod Temperton, who died in 2016 after writing some of the most popular songs of the 1970s and 80s including several of Michael Jackon’s biggest hits. Never in my teen years was I aware of Mr. Temperton’s role in all those songs.

So, keeping the focus on the composers, authors, painters, photographers, filmmakers et al. who do not perform, is there some anthropological reason to believe (hope) that artists will not be replaced by machines making music, books, visual arts, etc.? I understand that there are practical reasons why AIs may not get there at scale, but the question I’m asking is more about us than about the technology. Will the science that makes music provocative continue to work on the human listener, if future compositions are produced by things that cannot feel heartache or longing or humor, etc.? Put differently, will the novelty of generative AI wear off because the compositions it produces will become flat, bloodless, and disposable?

In my book, I wondered why an advanced AI (one that can make even semi-autonomous decisions) would bother to produce “art” upon reaching a certain threshold in its so-called intelligence. If humans make art because it’s one way we confront, synthesize, and respond to the human experience, then perhaps the “smarter” the AI becomes, the more likely it is to realize that it has nothing to say because it has no experience. Or does the robot begin to create works in response to the robot experience and ignore its instructions to produce songs or novels or pictures for human consumption? I doubt it, but if this does happen, we can be sure that some humans will form a cult to follow the new bot prophet.

But I’m not really answering the thesis question, am I? Because I have no idea. I want to believe that the question was answered by Ian Malcom (Jeff Goldblum) in Jurassic Park when he warned that nature finds a way.* Only instead of dinosaur nature triumphing over laboratory safeguards to keep them contained, it would be human nature instinctively rejecting synthetic “art” for reasons that are likewise ineffable. For better or worse the AI experiment, like Jurassic Park, has begun, and we’ll have to wait and see who gets eaten. So, perhaps the new version of the Turing Test should not be whether the computer can make you believe it’s human, but whether it can provoke a furtive tear and then ask whether you mind that it is not human.

[1] Buffett’s own description from his live album You Had to Be There.

*Thanks to comment by Bob Hill. Malcolm says “Life finds a way.” I edited the text to retain the point but drop the quotation marks.

Photo in collage: Thomas O’Leary in The Tales of Hoffmann.