This is Creator Economy Law, a newsletter dedicated to exploring and analyzing the legal issues surrounding the creator economy, creators, and internet platforms. If you enjoy what you’re reading, share with friends, and invite them to subscribe using the button above and share using #CreatorEconomyLaw.
📈 1.1 million 🤯
That’s how many copies of the memoir, “The Woman in Me,” sold during its first week. What can we say except, well… it’s Britney, bitch!
I’m joining The Information!
I’m thrilled to share that I’m joining a webinar hosted by The Information and moderated by the incredible Kaya Yurieff, plus sponsored by Deloitte! Join us on Thursday, November 16th, as we explore How to Regulate AI for the Creator Economy. Oh, and did I mention that it’s FREE! You don’t have to be a subscriber.
For creators, regulation of AI, particularly generative AI, has the potential to have as much of an impact as early internet regulations such as the DMCA or Section 230.
Biden’s Executive Order on AI: What Creators Should Know
On Monday, President Biden issued a sweeping new executive order aimed at regulating AI. This EO doesn’t hold back…
I wrote an article for Passionfruit and The Daily Dot that explores the impact of this EO on the creator economy, so check it out!
🤖 The focus of the EO:
- New standards for AI safety and security
- New privacy regulations at the federal level
- AI must advance equity and civil rights
- Protect consumers, patients, and students
- Support workers
- Promote innovation and competition
- Advance U.S. as a global leader in AI
- Responsible and effective uses of AI within the government
💡 Key Takeaways 💡
Here are some of my initial takeaways:
🔷 If you’re in “big tech” or currently set up as a major player in the AI space, you’ll have a lot of new obligations and expectations for transparency and accountability. Will platforms end up having liability (similar to Section 230 or DMCA) to ensure content given algorithmic boosts (or even hosted?) is verified as authentic using established industry standards, like what CAI or PAI offer?
🔷 Standards, standards, standards… We’ve seen significant movement in recent years, but now expect the focus on and move towards implementing/solidifying, and establishing new, standards to make sure “AI systems are safe, secure, and trustworthy.”
🔷 Privacy – the focus will get even hotter on privacy, including new legislation and privacy-preserving techniques that should be (or have been) implemented. Children were specifically mentioned, so expect laws along the lines of COPPA to apply.
🔷 Algorithmic discrimination will be critically scrutinized for any automation, decision-making, or decision-assisting systems. Don’t expect to build something that can’t be explained or hasn’t been sufficiently tested.
🔷 Expect to see more funding and assistance for smaller, U.S.-based innovation efforts.
🔷 Expect to see more efforts put towards ensuring any displaced workforces are not left behind, and offered re-training resources and attention.
There’s a TON to unpack here and, most importantly, analyze and extract the practical takeaways and impact this will have for the next few years (and potentially beyond).
🧐 But… will it last?
Since it’s an EO, it technically can be undone by the next president, if it isn’t President Biden for a second term or if we fail to replace this EO with the same or similar laws.
What do you think? Would love to discuss this in the comments!
- “From Deepfakes to Data: How Biden’s New AI Regulation Impacts Creators” by Franklin Graves (yeah, that’s me!)
- The FTC reiterated its commitment to investigating tech company deals across AI and cloud, as The Information reports on FTC Chair Linda Khan’s statements during an event in San Francisco this week. See also this blog post from the FTC back in June highlighting its concerns with AI and competition.
- FACT SHEET: President Biden Issues Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence
- FACT SHEET: Vice President Harris Announces New U.S. Initiatives to Advance the Safe and Responsible Use of Artificial Intelligence
Meta given 30 days to respond…
Meta was just given 30 days to stop using the name “THREADS” for its latest social media app. Let’s untangle this web…
Yesterday, the UK-based Threads Software Limited issued a press release claiming to have “written to Meta’s Instagram giving it 30 days to stop using the name Threads for their service in the UK.”In 2012, JPY Ltd. registered the mark THREADS in the UK (UK00002613458) to cover software that they describe as “an intelligent message hub”. The registration can be accessed here.
The UK company claims they’ve been promoting with the mark worldwide since 2014, with an American spin-off company in 2018 following sales in the U.S. that they claim have grown since.
The value appears to be in the domain name… 🔗
Interestingly, TSL claims that Meta’s lawyers reached out in April 2023 and offered to buy the domain “threads.app” but TSL declined each offer. In July, Meta launched Threads.
Why does it matter?
Here’s the issue: Meta would face significant operational issues if it was forced to change the name of its Threads service to something else in the UK. Such an approach would likely not be possible, without significant manual management for the geo.
But, if Meta doesn’t change the name, then TSL threatened to file for an injunction in UK courts that would prevent Meta from using the name “Threads” in the UK.
Read the full press release.
UPDATE: After I originally posted this earlier in the week, I had an expert UK attorney reach out and add some additional thoughts, which I’ve summarized and anonymized for their privacy:
- Meta has no choice but to respond and fight this. But, they arguably have the financial capability to do so.
- It’s not likely that TSL will be granted a temporary injunction. But, if they were granted one, they may not want it because TSL would then be on the hook (financially) for damages Meta suffered as a result of the injunction if TSL ultimately loses the case.
- Is a messaging hub really that similar to a social media platform? This attorney doesn’t think it’s a strong case.
Court grants, in part, Stability AI, DeviantArt, and Midjourney’s motion to dismiss the Andersen copyright case
“Finding that the Complaint is defective in numerous respects” Judge William Orrick granted the motion to dismiss Andersen’s claims:
- Stability AI was denied dismissal of the copyright infringement claim. DeviantArt and Midjourney were granted the motion to dismiss direct copyright infringement claims. But, they can be refiled.Also, the claims will be limited to the works that Anderson has actually registered.
- Vicarious infringement claims are dismissed for all 3 defendants, mainly because the claims of direct infringement can’t be sustained.
- DMCA removal of CMI claims are dismissed for lack of evidence, plus DeviantArt and Midjourney weren’t involved in the LAION data training phase.
- Right of publicity claims are dismissed for lack of evidence the artist defendants’s names were used to market the AI tools.For DeviantArt’s First Amendment defense, the court writes: “the applicability of transformative use defense is better determined after plaintiffs clarify and otherwise amend their right of publicity claims and at a subsequent juncture on an evidentiary basis.”
- Unfair competition law (UCL) claims are also dismissed, noting a slew of issues with how the complaint brought these claims. Fortunately, for the artists, they can refile.
- Breach of contract claims against DeviantArt are dismissed, but Anderson can refile with specific references to ToS that were breached.
- Midjourney’s attempt to remove the class action claims is denied, court says it’s premature to remove those claims.
- DeviantArt tried to raise Anti-SLAPP defense to the right of publicity claims and have them stricken. However, the court said it’ll reconsider the request if Anderson re-files the right of publicity claims.
🌟 The important point to remember here is that this FAR from over. Andersen is allowed to amend and file again.
So… we’ll have to wait and see when those updated complaints drop.
The case is Andersen v. Stability AI Ltd. (3:23-cv-00201), District Court, N.D. California, Filed Jan. 13, 2023.
Creator Economy and Net Neutrality
On October 19, the FCC voted 3-2 in favor of a plan that begins the process of restoring net neutrality rules, meaning broadband internet is regulated as a telecommunication service. The vote approved the Notice of Proposed Rulemaking for Safeguarding and Securing the Open Internet. This potentially has an indirect impact on ensuring the continued openness of the creator economy. The FCC wants to hear feedback on this, noting:
Social media websites and other platforms particularly have become important platforms for free expression, political engagement, and social activism. Indeed, Congress has recognized that “the internet offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” Accordingly, we invite comment on any free expression-related considerations associated with classifying BIAS as a telecommunications service and any benefits or drawbacks of such classification for relevant communications.
Is the internet a utility? If so, then internet service providers will become much more heavily regulated in the same way the telephones are regulated. Supporters of net neutrality view it as an opportunity to ensure equal access not only to fast, not-throttled connections but also to equal treatment of data.
Comments are due on or before December 14, 2023, and reply comments are due on or before January 17, 2024. Written comments on the Paperwork Reduction Act proposed information collection requirements must be submitted by the public and other interested parties on or before January 2, 2024.
- On the most recent episode of Pivot podcast (starting at 15:08), Kara Swisher and Scott Galloway offer a great discussion about why, if at all, net neutrality matters.
- Also, check out NPR’s The Indicator episode “What happened to the internet without net neutrality?“
Thanks to Jim Louderback for the DM about this one!
- Vox published an in-depth explainer surrounding the five cases before the Supreme Court this term that involve social media companies and their practices. SCOTUSblog also covered the oral arguments that took place this week.
- Meta’s Facebook and Instagram will begin offering subscriptions (€9.99 / mo.) for ad-free experiences on their apps to users 18 and up in the EEA and Switzerland. Free, ad-supported access will remain. The subscription tiers are a result of years of litigation and regulatory oversight in the EU when it comes to how Meta tracks users for behavioral advertising. Starting next week, the company will temporarily pause all ads for users under the age of 18, as an additional effort to comply with EU regulators’ expectations. However, on Wednesday, EU regulators implemented a ban across all of the EU to prevent Meta’s use of behavioral advertising.
- I shared last week about the new lawsuit against Meta that was filed by nearly every state AG’s office. Fast Company provides a deeper look into some of the research that claims how Facebook and Instagram have harmed teens.
- TikTok dropped a new 23-page transparency report as part of its compliance with the EU’s Digital Services Act. Social Media Today breaks it down, and also for LinkedIn.
- Meta’s Oversight Board supported Facebook’s decision to not remove two posts about a Thai woman’s fruit juice-only diet. Instead, the Board recommends the videos not be monetized.
- Is Meta discriminatory in its ad practices? A sexual wellness brand claims as much after having a sex toy shop’s ads rejected when targeting women, but accepted when targeting men. Mashable’s Anna Iovine wrote an article that explores the claims.
- “YTMP3 Wants Google to Identify Alleged DMCA Fraudsters” by Ernesto Van der Sar via Torrent Freak
- Workers at TikTok are reportedly facing harsher employee reviews which would result in lower bonuses and potential layoffs. WSJ has the exclusive.
- TikTok Music inks deal with DistriKid for large catalogs of indie artists.
- Ad blocking on YouTube is getting shut down, now on a global scale.
- TikTok now integrates with Salesforce Marketing Cloud, a big win on bringing the social platform into the same arena for corporate marketing groups and agencies as other social platforms that already offered lead generation integration.
- Twitch rolled out updates to how streamers that violated Community Standards could appeal, and how permanently banned players could get reinstated. Read coverage from Polygon.
- Travis Brown, a German-based developer, was banned from X following his research highlighting the lack of moderation and adherence to the platform’s own content policies. Now, the fight is playing out in court, as TechCrunch reports.
- At the UK’s AI Safety Summit this week, companies including TikTok, Snapchat, and Stability AI have committed to preventing AI-generated CSAM.
- YouTube has AI creator tools, but creators are too busy battling AI to care, as Jay Castello explores in this new piece for Polygon. Read on Apple News+.
- IAC warns regulators generative AI could wreck the web, via Sara Fischer at Axios
- Andrew Hutchinson nailed it with this hot take in Social Media Today on generative AI tools from social media platforms: “[…] it feels like a step towards bots engaging with other bots, which could erode the concept of what ‘social’ media actually is.” Read the full article.
- Andrew also shares predictions for trends in social media for 2024, and AI is obviously a big one.
- Over the summer, Meta launched what is now being called a “fake PR stunt” that purportedly allowed artists to opt out of having their content used to train AI systems. Did the program actually do anything? Kate Knibbs over at Wired investigates in this report.
- Mozilla published a letter calling for more openness in AI.
- Elon Musk doesn’t want to testify in court as the SEC has requested in connection with the Twitter acquisition.
In plain terms, allowlisting is one part influencer marketing and one part sponsored post. Using either a social media platform itself, like TikTok or Instagram, or a third-party service, an influencer gives permission to advertisers to run their social ad campaigns through the influencer’s account. Although, the advertisers cannot see an influencer’s direct messages.
- I love learning about new things in the creator economy, and Digiday‘s WTF series doesn’t disappoint this week with their explainer on “allowlisting” by Kimeko McCoy
- About a year ago, I shared about “nightcore” and the trend of using sped-up or slowed-down versions of popular songs as the soundtrack to a post. Now, Pex estimates there are more than 1 million unauthorized remixes used across social media platforms in a new article from Billboard. Does anyone smell opportunity?
- Buzzfeed missed Q3 EPS and revenue came in under. Read the full report.
- Chinese mobile app developer bans continue this time with the Canadian government’s ban of WeChat and Kaspersky messaging apps on government devices.
- Social media platforms in China are beginning to require real names be used, in an effort to allow more government oversight.
- Taylor Lorenz explores the explosion of news content on TikTok and Instagram.
- ‘Dupe’ shopping is rising in popularity, thanks to videos on TikTok. ‘Dupe shopping’ has ‘flipped the script’ for consumers, analysts say; but, is the popular trend leading to trademark issues? Daily Dot explores a creator who received a trademark takedown for a video they posted.
Responding to the U.S. Copyright Office on the range of issues and topics presented in the AI Notice of Inquiry wasn’t easy. But, it was a challenge that Chad Rutkowski and the team took on and accomplished tremendously well! Download our letter.
🔥 In our view, great care needs to be taken to ensure that the deleterious effects of generative AI systems are minimized, while not simultaneously thwarting the development of a technology that may yield crucial benefits to the U.S. economy and U.S. global competitiveness. 🔥
I’m so proud of the work performed by the American Bar Association’s Section of Intellectual Property Law and the chance to contribute to the incredible work we can do through our members. Learn more about the IP Section.
We have so many experts across numerous disciplines and backgrounds in Intellectual Property, it truly is amazing we were able to come together and stand behind a letter such as this one. Excited to continue the work!
Live CLE on AI
Attorney Marc Hoag shared with me about what looks to be a really cool CLE happening virtually. Artificial Intelligence and the Law is coming up on November 16, 2023, from 3-4pm ET and only costs $59.
“Attorneys will learn, at a fairly technical but easily understandable level, how generative AI like ChatGPT works; the nascent field of AI law in the US, including its intersection with copyright law; the EU AI Act; how best to integrate AI into your legal workflow; and future risks and concerns surrounding AI in general.”
Looking for some new dance music? Look no further than Jungle! I just came across their video for “You Ain’t No Celebrity” and it’s amazing. Turns out, it’s part of a video series and each part so far has been amazingly done – from choreography to videography to musically. Highly recommend!
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Not Legal Advice. This newsletter is published solely for educational and entertainment value. Nothing in this newsletter should be considered legal advice. If you need legal assistance or have specific questions, you should consult a licensed attorney in your jurisdiction. I am not your attorney. Do not share any information in the comments you should keep confidential.
Personal Opinions. The opinions and thoughts shared in this newsletter are my own, and not those of my employer or any of the third parties mentioned or linked to in this newsletter. No affiliation or endorsement is implied or otherwise intended with third parties that are referenced or linked.
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