W40Y23 Weekly Review: SEC v. Elon Musk, ROSS Intelligence AI, and More Elon Musk Lawsuits

+++ SEC Sues Elon Musk Over Twitter Purchase 
+++ College Graduate Sues Elon Musk For Defamation
+++ Update: Thomson Reuters’ Copyright Lawsuit Against Ross Intelligence Over Westlaw


SEC Sues Elon Musk Over Twitter Purchase 
The Securities and Exchange Commission (SEC) is seeking a court order to compel Elon Musk to comply with an administrative subpoena. Musk had been scheduled to testify as part of an SEC investigation into his 2022 purchases of Twitter stock and his related statements and filings. However, he failed to appear for his scheduled testimony, citing various objections, including the location of the testimony. 

Read the full report on The Hill. 
Read the case SEC v. Elon Musk, U.S. District Court for the Northern District of California, No. Case 3:23-mc-80253-LB. 

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College Graduate Sues Elon Musk For Defamation
Benjamin Brody is suing Elon Musk for falsely accusing him of being involved with a neo-Nazi group during a brawl between right-wing extremist groups at a Pride event in Portland, Oregon. The lawsuit claims that Musk has a pattern of making reckless false statements that harm innocent third parties and promote disinformation. The incident involves a viral video of the street fight, where Brody was wrongly identified as one of the participants. Musk’s tweets amplified these false accusations, causing panic, fear, and depression for Brody. He is seeking damages of at least $1 million, a jury trial, and a judgment to clear his name.

Read the full report on NPR.
Read the case  Benjamin Brody v. Elon Musk, District Court of Travis County.  

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Update: Thomson Reuters’ Copyright Lawsuit Against Ross Intelligence Over Westlaw
Thomson Reuters accuses the now defunct AI startup, Ross Intelligence, of unlawfully copying content from its legal research platform, Westlaw, to train a competing AI-based platform. The case is moving forward to be heard by a jury to determine, among other allegations, whether scraping Westlaw’s “headnotes”, which are curated legal case summaries, without proper licensing or permission was a misuse of Westlaw. 

Read the full report on Reuters.
Read the case Thomson Reuters and West Publishing v Ross Intelligence, U.S. District Court for the District of Delaware, No. 1:20-cv-00613-SB.

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More Headlines

  • Data Privacy: “UK Information Commissioner issues preliminary enforcement notice against Snap” (by ICO)
  • Data Privacy: “Australian federal police officers’ details leaked on dark web after law firm hack” (by Guardian)
  • Data Privacy: “Child online safety laws will actually hurt kids, critics say. Why child online safety is so complicated” (by MIT Technology Review)
  • Data Privacy: “The TikTok ban isn’t Montana’s only new tech privacy law” (by MTFP)
  • Social Media: “What’s at stake in the Supreme Court’s landmark social media case” (by TechCrunch)
  • Deepfakes: “Lawmakers question Meta and X on how they’ll police AI-generated political deepfakes” (by LA Times)
  • AI: “Governments race to regulate AI tools” (by Reuters)
  • AI: “Spotify boss urges UK to enact tougher regulation of tech gatekeepers” (by Financial Times)
  • AI: “Disney Has No Comment on Microsoft’s AI Generating Pictures of Mickey Mouse Doing 9/11.” (by Futurism)

In Other News (or publications you should read)

This post originated from my publication Codifying Chaos.

Legislative Considerations for Generative Artificial Intelligence and Copyright Law

Who, if anyone, may claim copyright ownership of new content generated by a technology without direct human input? Who is or should be liable if content created with generative artificial intelligence infringes existing copyrights?

tl;dr
Innovations in artificial intelligence (AI) are raising new questions about how copyright law principles such as authorship, infringement, and fair use will apply to content created or used by AI. So-called “generative AI” computer programs—such as Open AI’s DALL-E and ChatGPT programs, Stability AI’s Stable Diffusion program, and Midjourney’s self-titled program—are able to generate new images, texts, and other content (or “outputs”) in response to a user’s textual prompts (or “inputs”). These generative AI programs are trained to generate such outputs partly by exposing them to large quantities of existing works such as writings, photos, paintings, and other artworks. This Legal Sidebar explores questions that courts and the U.S. Copyright Office have begun to confront regarding whether generative AI outputs may be copyrighted and how generative AI might infringe copyrights in other works.

Make sure to read the full paper titled Generative Artificial Intelligence and Copyright Law by Christopher T. Zirpoli for the Congressional Research Service at https://crsreports.congress.gov/product/pdf/LSB/LSB10922/5


The increasing use of generative AI challenges existing legal frameworks around content creation, ownership, and attribution. It reminds me of the time streaming began to challenge the – then – common practice of downloading copyrighted and user-generated content. How should legislators and lawmakers view generative AI when passing new regulations? 

Copyright, in simple terms, is a type of legal monopoly afforded to the creator or author. It is designed to allow the creator to monetize from their original works of authorship to sustain a living and continue to create because it is assumed that original works of authorship further society and expand knowledge of our culture. The current text of the Copyright Act does not explicitly define who or what can be an author. However, both the U.S. Copyright Office and the judiciary have afforded copyrights only to original works created by a human being. In line with this narrow interpretation of the legislative background, Courts have denied copyright for selfie photos created by a monkey arguing only humans need copyright as a creative incentive.


This argument does imply human creativity is linked to the possibility of reaping economic benefits. In an excellent paper titled “The Concept of Authorship in Comparative Copyright Law”, the faculty director of Columbia’s Kernochan Center for Law, Media, and the Arts, Jane C. Ginsburg refutes this position as a mere byproduct of necessity. Arguably, a legislative scope centered around compensation for creating original works of authorship is failing to incentivize creators and authorship altogether, who, for example, seek intellectual freedom and cultural liberty. This leaves us with a creator or author of a copyrightable work can only be a human. 

Perhaps, generative AI could be considered a collaborative partner used to create original works through an iterative process. Therefore creating an original work of authorship as a result that could be copyrighted by the human prompting the machine. Such cases would also fall outside of current copyright laws and not be eligible for protection. The crucial argument is the expressive element of a creative work must be determined and generated by a human, not an algorithm. In other words, merely coming up with clever prompts to allow generative AI to perform an action, iterating the result with more clever prompts, and claiming copyright for the end result has no legal basis as the expressive elements were within the control of the generative AI module rather than the human. The interpretation of control over the expressive elements of creative work, in the context of machine learning and autonomous, generative AI, is an ongoing debate and likely see more clarification by the legislative and judicial systems.    

To further play out this “Gedankenexperiment” of authorship of content created by generative AI, who would (or should) own such rights? Is the individual who is writing and creating prompts, who is essentially defining and limiting parameters for the generative AI system to perform the task, eligible to claim copyright for the generated result? Is the Software Engineer overseeing the underlying algorithm eligible to claim copyright? Is the company owning the code-work product eligible to claim copyright? Based on the earlier view about expressive elements, it would be feasible to see mere “prompting” as an ineligible action to claim copyright. Likewise, an engineer writing software code performs a specific task to solve a technical problem. Here, an algorithm leveraging training data to create similar, new works. The engineer is not involved or can be attributed to the result of an individual using the product to the extent that it would allow the engineer to exert creative control. Companies may be able to clarify copyright ownership through its terms of service or contractual agreements. However, a lack of judicial and legal commentary on the specific issue leaves it unresolved, or with few clear guidances, as of October 2023.     

The most contentious element of generative AI and copyrighted works is the liability around infringements. OpenAI is facing multiple class-action lawsuits over its allegedly unlicensed use of copyrighted works to train its generative models. Meta Platforms, the owner of Facebook, Instagram, and WhatsApp, is facing multiple class-action lawsuits over the training data used for its large-language model “LLaMA”. Much like the author of this paper, I couldn’t possibly shed light on this complex issue with a simple blog post, but lawmakers can take meaningful action. 

Considerations and takeaways for lawmakers and professionals overseeing the company policies that govern generative AI and creative works are: (1) clearly define whether generative AI can create copyrightable works, (2) exercise clarity over authorship and ownership of the generated result, and (3) outline the requirements of licensing, if any, for proprietary training data used for neural networks and generative modules.

The author looked at one example in particular, which concerns the viral AI-song “Heart On My Sleeve” published by TikTok user ghostwriter977. The song uses generative AI to emulate the style, sound, and likeness of pop stars Drake and The Weeknd to appear real and authentic. The music industry understandably is put on guard with revenue-creating content generated within seconds. I couldn’t make up my mind about it, so here you listen for yourself. 

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.