Month: September 2023

W39Y23 Weekly Review: FTC v. Amazon, Copyright Limitations, and H&R Block Data Racketeering

+++ FTC Sues Amazon Over Monopoly 
+++ SCOTUS To Hear Copyright Statute Of Limitations Case Against Rapper Flo Rida
+++ H&R Block, Google, Meta Hit With RICO Class-Action Lawsuit Over Illegal Scraping Of Taxpayer Data

FTC Sues Amazon Over Monopoly 
The Federal Trade Commission and 17 State Attorneys General have filed a lawsuit against Amazon accusing the e-commerce behemoth of being a monopolist that uses unfair tactics to maintain its dominance illegally. Allegedly, Amazon’s actions prevent rivals and sellers from lowering prices, reducing product quality, overcharging sellers, hindering innovation, and impeding fair competition. Amazon allegedly engages in exclusionary practices that stifle competitors. These practices impact billions of dollars in retail sales, numerous products, and millions of shoppers. The lawsuit aims to hold Amazon accountable for these monopolistic practices and restore fair competition by seeking a permanent injunction.

Read the full press release by the FTC.
Read the full report in the Washington Post.
Read the full academic paper by Lina M. Khan titled “Amazon’s Antitrust Paradox”.
Read the case FTC et al v. Amazon, U.S. District Court, Western District of Washington, No. 2:23-cv-01495. 

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SCOTUS To Hear Copyright Statute Of Limitations Case Against Rapper Flo Rida
The U.S. Supreme Court has agreed to clarify the time period during which plaintiffs can seek damages in copyright claims. This case involves a Miami music producer, Sherman Nealy, who sued Warner Music’s Atlantic Records label over the use of a 1980s song in a 2008 Flo Rida track. Nealy argues that his record label owns the rights to the song and that the licenses given to the defendants were invalid because he did not give permission while he was incarcerated. SCOTUS will address the conflicting rulings of lower courts on the time limit for seeking damages in copyright cases. This case is set to be heard in the upcoming court term.

Read the full report on The Hollywood Reporter.
Read the full docket Warner Chappell Music v. Sherman Nealy, U.S. Supreme Court, No. 22-1078.

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H&R Block, Google, Meta Hit With RICO Class-Action Lawsuit Over Illegal Scraping Of Taxpayer Data
Trial lawyer R. Brent Wisner is suing H&R Block alleging the tax firm collaborated with Meta and Google to use “spyware” on its website for profit from scraped taxpayer data. The class-action suit is filed under the Racketeer Influenced and Corrupt Organizations Act (RICO), claiming a pattern of racketeering tantamount to the mafia. It argues that these companies failed to inform consumers about data sharing and engaged in deceptive practices. A congressional report revealed H&R Block shared data through tracking pixels, potentially violating data privacy laws. The lawsuit cites tax code limitations on data use. The FTC recently warned H&R Block about data usage without consent.

Read the full report on Gizmodo.
Read the case Justin Hunt v. Meta Platforms, Google, H&R Block, U.S. District Court for the Northern District of California, No. 3:23-cv-04953.

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More Headlines

  • Digital Services Act: “EU Court Says Amazon Is Not a ‘Very Large Online Platform,’ for Now” (by Gizmodo) 
  • Digital Services Act: “Elon Musk’s X headed for ‘rule of law’ clash with EU, warns Twitter’s former head of trust & safety” (by TechCrunch)
  • Free Speech: “SCOTUS to decide if Florida and Texas social media laws violate 1st Amendment” (by Ars Technica) 
  • Free Speech: “New York’s Hate Speech Law Violates the First Amendment” (by Cato)
  • Copyright Law: “Jay-Z, Timbaland, Ginuwine Win Years-Long Copyright Infringement Suit Over “Paper Chase” and “Toe 2 Toe” (by American Songwriter)
  • Copyright Law: “Ed Sheeran Wins ‘Thinking Out Loud’ Copyright Trial” (by Rolling Stone)
  • Copyright Law: “Yung Gravy and Rick Astley Settle Vocal Impersonation Lawsuit” (by Billboard)
  • Data Privacy: “IBM and Johnson & Johnson Health Care Systems Sued Over August 2023 Data Breach” (by HIPPA Journal)
  • Data Privacy: “Enforcement of California’s Age-Appropriate Design Code Act Is Put on Ice — for Now” (by JD Supra)
  • Data Privacy: “Revealed: US collects more data on migrants than previously known” (by Guardian) 
  • Data Privacy: “Honeywell facing multiple lawsuits over data breach” (by WCNC)
  • Data Privacy: “Donald Trump Sues Former British Spy in London Data Lawsuit” (by Bloomberg)

In Other News (or publications you should read)

This post originated from my publication Codifying Chaos.

The Problem With Too Much Privacy

The debate around data protection and privacy is often portrayed as a race towards complete secrecy. The author of this research paper argues that instead, we need to strike a balance between protection against harmful surveillance and doxing on one side and safety, health, access, and freedom of expression on the other side.

tl;dr
Privacy rights are fundamental rights to protect individuals against harmful surveillance and public disclosure of personal information. We rightfully fear surveillance when it is designed to use our personal information in harmful ways. Yet a default assumption that data collection is harmful is simply misguided. Moreover, privacy—and its pervasive offshoot, the NDA—has also at times evolved to shield the powerful and rich against the public’s right to know. Law and policy should focus on regulating misuse and uneven collection and data sharing rather than wholesale bans on collection. Privacy is just one of our democratic society’s many values, and prohibiting safe and equitable data collection can conflict with other equally valuable social goals. While we have always faced difficult choices between competing values—safety, health, access, freedom of expression and equality—advances in technology may also include pathways to better balance individual interests with the public good. Privileging privacy, instead of openly acknowledging the need to balance privacy with fuller and representative data collection, obscures the many ways in which data is a public good. Too much privacy—just like too little privacy—can undermine the ways we can use information for progressive change. Even now, with regard to the right to abortion, the legal debates around reproductive justice reveal privacy’s weakness. A more positive discourse about equality, health, bodily integrity, economic rights, and self-determination would move us beyond the limited and sometimes distorted debates about how technological advances threaten individual privacy rights.

Make sure to read the full paper titled The Problem With Too Much Data Privacy by Orly Lobel at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4578023

The United States has historically frayed away from enacting privacy laws or recognizing individual privacy rights. Arguably, this allowed the United States to innovate ruthlessly and progress society relentlessly. The Fourth Amendment and landmark Supreme Court cases shaped contemporary privacy rights in the U.S. over the past half of the century. In the aftermath of the September 11, 2001 terrorist attacks, however, privacy rights were hollowed out when H.R. 3162 aka the Patriot Act was passed, which drastically expanded the Government’s surveillance authority. In 2013, whistleblower Edward Snowden released top-secret NSA documents to raise the public’s awareness of the scope of surveillance and invasion of privacy done to American citizens and citizens of the world by and large. In 2016, the European Union adopted regulation EU 2016/679 aka General Data Protection Regulation (GDPR). Academic experts who participated in the formulation of the GDPR wrote that the law “is the most consequential regulatory development in information policy in a generation. The GDPR brings personal data into a complex and protective regulatory regime.” This kickstarted a mass adoption of privacy laws across different States from California’s Consumer Protection Act of 2018 (CCPA) to Virginia’s Consumer Data Protection Act of 2021 (VCDPA). 

History, with all its legislative back-and-forth evolutions, illustrates the struggle around balancing data privacy with data access. Against this backdrop, the author argues that data is information and information is a public good. Too much privacy restricts, hampers, and harms access to information and therefore innovation. And, while society has always faced difficult choices between competing values, modern technology has the capability to effectively anonymize and securely process data, which can uphold individual privacy rights while supporting progressive change.   

W38Y23 Weekly Review: More OpenAI Legal Trouble, Meta Trademark, Tiger King 

+++ Authors Guild Sues OpenAI Over Systematic Copyright Infringement
+++ Metabyte Sues Meta Platforms FKA Facebook Over “Meta” Trademark
+++ Family Sues Alphabet After Man Died Following Google Maps Directions
+++ Court Dismisses Tiger King Tattoo Lawsuit Against Netflix Over Alleged Copyright Infringement 


Authors Guild Sues OpenAI Over Systematic Copyright Infringement
The Authors Guild, representing prominent authors like George R.R. Martin, Jonathan Franzen, and John Grisham, has sued OpenAI for using their novels and original work to train ChatGPT without their permission or license. The authors claim that OpenAI has created infringing works that can summarize, analyze, and generate derivative works based on their novels, competing with their original works. The lawsuit is the third one against OpenAI over this issue, following similar suits by authors Paul Tremblay and Sarah Silverman. The authors argue that OpenAI obtained the novels from illegal online libraries and that ChatGPT facilitates the creation of infringing fan fiction by businesses and users. The authors seek an injunction and damages from OpenAI. 

Read the full report on The New York Times.
Read the full report on The Hollywood Reporter.
Read the case Jonathan Franzen, John Grisham, George R.R. Martin, Jodi Picoult, George Saunders et alia v. OpenAI, U.S. District Court, Southern District of New York, No. 1:23-cv-08292. 

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Metabyte Sues Meta Platforms FKA Facebook Over “Meta” Trademark
Metabyte, a California-based company that provides staffing and tech services, has filed a trademark lawsuit against Meta Platforms, the new name of Facebook. Metabyte claims that it has been using its name since 1993 and has registered trademarks for it since 2014. It argues that Meta Platforms’ name change and rebranding will confuse consumers, as both companies offer related services and cover overlapping geographic areas. Metabyte seeks to stop Meta Platforms from using the name Meta and asks for damages and profits from the alleged infringement. The lawsuit comes after the two companies failed to reach an agreement on coexisting with their respective names.

Read the full report on Reuters.
Read the case Metabyte Inc v. Meta Platforms Inc, U.S. District Court for the Northern District of California, No. 4:23-cv-04862.

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Family Sues Alphabet After Man Died Following Google Maps Directions
The family of a North Carolina man who tragically drove off a collapsed bridge while following Google Maps directions is suing Google for negligence. The bridge had collapsed nine years earlier. Philip Paxson died in September 2022 after his car plunged 20 feet into a washed-out creek. His family claims Google was aware of the bridge’s condition but failed to update its navigation system. Despite numerous warnings from the public, Google allegedly did not take action to correct the route information. The lawsuit names several private property management companies as responsible for the bridge, which had not been maintained or properly barricaded for years.

Read the full report on Associated Press.
Read the full report on Ars Technica. 
Read the case Paxson v. Google, Superior Court of the State of North Carolina for the County of Wake, No. 23CV026335-910.  

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Court Dismisses Tiger King Tattoo Lawsuit Against Netflix Over Alleged Copyright Infringement 
A federal judge has ruled that Netflix did not infringe the copyright of a tattoo artist who claimed that the streaming service used his photo of a tiger tattoo without his permission in the documentary series “Tiger King”. The judge found that Netflix had a fair use defense because the photo was used for a transformative purpose and did not harm the market value of the original work. The judge also dismissed the artist’s claims of false designation of origin and unfair competition. 

Read the full report on Law.com.
Read the case Cramer v. Netflix et al, U.S. District Court for the Western District of Pennsylvania, No. 3:22-cv-00131-SLH.

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More Headlines

  • Copyright Law: “Musicians are eyeing a legal shortcut to fight AI voice clones” (by The Verge)
  • Data Privacy: “Papa John’s Defeats Suit Over Session Replay Software on Website” (by Bloomberg Law)
  • Data Privacy: “Hunter Biden files lawsuit against IRS alleging privacy violations” (by CBS News)
  • Data Privacy: “Poland investigates OpenAI over privacy concerns” (by Reuters) 
  • Legal Practice: “Break the Law or Leave No Record, California Courts Face Dilemma” (by Bloomberg Law)
  • Antitrust Law: “Microsoft, Google and Antitrust: Similar Legal Theories in a Different Era” (by New York Times)

In Other News (or publications you should read)

This post originated from my publication Codifying Chaos.

Structuring Technology Law

Techlaw, which studies how law and technology interact, needs an overarching framework that can address the common challenges posed by novel technologies. Generative artificial intelligence seems to be a novel technology that introduces a plethora of legal uncertainties. This chapter excerpt and paper examines lawmakers, legislators, and legal actors legal response options to techlaw uncertainties and inspires a structured approach to creating an overarching framework.  

tl;dr
By creating new items, empowering new actors, and enabling new activities or rendering them newly easy, technological development upends legal assumptions and raises a host of questions. How do legal systems resolve them? This chapter reviews the two main approaches to resolving techlaw uncertainties. The first is looking back and using analogy to stretch existing law to new situations; the second is looking forward and crafting new laws or reassessing the regulatory regime.

Make sure to read the full paper titled Legal Responses to Techlaw Uncertainties by Rebecca Crootof and BJ Ard at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4545013

(Source: Tierney/Adobe Stock Photography via law.com)

New technologies often expand human interactions and transactions beyond previously codified regimes. This creates dissonance between historic legal decision-making and present or future adjudication of conflict. The authors argue that technology challenges laws in three distinct ways: (1) application of laws, (2) normative, i.e. creating an undesired result or legal loophole, and (3) institutional, i.e. which body should regulate and oversee a specific technology. To illustrate with a simplified, practical example: OpenAI released with ChatGPT a program that creates content based on the depth of access to training data and level of quality control. Does the act of creating content from training data which originates from thousands of human creators constitute a copyright violation? Is copyright law applicable? If so, does a judicial order contradict the purpose of intellectual property rights? Or, perhaps to take it a step further should property rights be applicable to artificial intelligence in the first place? 

The authors offer a two-pronged approach to overcome these challenges by (1) adopting a “looking back” and (2) a “looking forward” mindset when interpreting and resolving legal uncertainties. They discuss these approaches as binary to emphasize the distinctions between them, but they exist on a continuum. Looking back is using analogies to extend existing law to new situations. Looking forward is creating new laws or reevaluating the regulatory framework. They argue that technology law needs a shared methodology and overarching framework that can address the common challenges posed by novel technologies. Without diving into a backwards approach, which is commonly taught in law school, let’s skip to future proofing new laws. Lawmakers represent an eclipse of society with all its traditional and modern challenges. They have to balance between ease of amending a law and its scope. For a number of reasons, they often prefer stability over flexibility and flexibility over precision. Actual decision-making comes down to passing tech-neutral laws or tech-specific laws. Tech-neutrality implies a broad and adaptable set of regulations applicable to various technologies, offering flexibility and reducing the need for frequent updates when new tech emerges. However, they can be vague and overly inclusive, potentially interfering with desirable behaviors and enforcement. Tech-specific laws, on the other hand, are commonly clear in language and tailored to specific issues, making compliance easier while still promoting innovation. Yet, they may become outdated and create legal loopholes or greyareas if not regularly updated, and crafting them requires technical expertise. Technical expertise in particular is hard to convey to an ever-aging body of political representatives and lawmakers. 

Structuring technology law seems to prefer a high-level of flexibility and adaptability over system stability. However, the nuances and intricacies of technology and its impact on society can’t be quantified or summarized in a brief chapter. This original excerpt builds upon content Crootof and Ard originally published in 2021. You can read the full paper titled “Structuring Techlaw” at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3664124 to gain full perspective of lawmakers’ legal response options to techlaw uncertainties. 

W37Y23 Weekly Review: DPC v. TikTok, Chabon v. Meta, and California v. Google

+++TikTok Hit with $368 Million Fine by Irish Data Protection Commission
+++Meta Sued by Pulitzer Price Winner Over Llama-AI Training Data
+++California Attorney General Sues Google for $93 Million Over Location History Data


TikTok Hit with $368 Million Fine by Irish Data Protection Commission
Ireland’s Data Protection Commission (DPC) fined TikTok €345 million ($368 million) for violating the GDPR in relation to children and underaged users. The DPC found that TikTok’s sign-up process and family pairing feature exposed children’s data to public and parental access. The European Data Protection Board (EDPB) intervened and directed the DPC to amend its draft decision to include a new finding of infringement of the principle of fairness. TikTok disagreed with the decision and said it had made changes before the investigation. The Irish regulator is still investigating TikTok’s procedures around transferring European user data to China.

Read the full press release by the Irish Data Protection Commission.
Read the full report on Associated Press.
Read the decision in the matter of TikTok Technology Limited made pursuant to Section 111 of the Data Protection Act, 2018 and Articles 60 and 65 of the General Data Protection Regulation, DPC IN-21-9-1

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Meta Sued by Pulitzer Price Winner Over Llama-AI Training Data
A group of writers, including Pulitzer Prize winner Michael Chabon, has sued Meta Platforms, accusing the tech company of using their writings, including pirated versions, to train its Llama AI software. This lawsuit follows a similar case against OpenAI. Authors argue that their works are valuable for AI language training yet Meta has failed to seek permission or pay compensation.

Read the full report on reuters.
Read the case Michael Chabon et alia v. Meta Platforms Inc. et alia, U.S. District Court, Northern District of California, No. 3:23-cv-04663.

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California Attorney General Sues Google for $93 Million Over Location History Data
The California AG has sued Google for $93 million, accusing it of lying to users about how their location data was used and shared by third parties. The lawsuit also claims that Google violated the state’s laws on unfair competition and false advertising. The lawsuit says that Google misled users about their location data options, such as Location History, Web and app Activity, and ad personalization. The lawsuit also says that Google must pay $93 million to the state and agree to some new restrictions on its location services and deceptive communications.

Read the full report on techcrunch.
Read the case California v. Google, Superior Court of the State of California for the County of Santa Clara, No. 23CV422424.

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More Headlines

  • Copyright Law: “Trump asks court to trim ‘Electric Avenue’ copyright lawsuit’” (by Reuters)
  • Copyright Law: “Japanese YouTuber convicted of copyright violation after uploading Let’s Play videos” (by The Verge)
  • Copyright Law: “Four large US publishers sue ‘shadow library’ for alleged copyright infringement” (by Guardian)
  • Antitrust Law: “In the Google antitrust trial, defaults are everything and nobody likes Bing” (by The Verge) 
  • Data Privacy: “Dutch Groups Launch Major Privacy Lawsuit Against Google” (by Forbes) 
  • Data Privacy: “Indiana AG Todd Rokita sues IU Health for disagreeing on patient privacy in Caitlin Bernard case” (by Indiana Capital Chronicle)
  • Data Privacy: “The Technology Facebook and Google Didn’t Dare Release” (by New York Times)
  • Data Privacy: “Clean data must be as much of a right as clean water” (by Financial Times) 
  • Watch: “Senators host tech leaders for closed-door AI summit” (by MSNBC)

In Other News (or publications you should read)

This post originated from my publication Codifying Chaos.