RESTRICTing TikTok, AI Fight with Copyright Office Continues, FTC “weaponized” against Twitter, YouTube Music’s union problem, + more!
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.
What is our responsibility to each other with respect to the use of generative AI tools when releasing content? I shared some of my thoughts here, but I would welcome your thoughts, too. I also put forth three potential solutions for platforms, especially those that offer generative AI tools: (1) a self-disclosure toggle; (2) copy-and-paste detection; and (3) automatic disclosures.
I don’t currently use AI tools. My promise to you: If I ever do use generative AI or other AI-powered tools, I’ll make sure it is disclosed.
Here’s what’s been happening in the world of Creator Economy Law.
On Monday, The New York Times reported its confirmation from five people that “the Biden administration is considering pushing Congress to give it more legal power to deal with TikTok and other technology that could expose sensitive data to China.”
On Tuesday, (from the press release) U.S. Sens. Mark R. Warner (D-VA), Chairman of the Senate Select Committee on Intelligence, and John Thune (R-SD), ranking member of the Commerce Committee’s Subcommittee on Communications, Media and Broadband, led a group of 12 bipartisan senators to introduce the Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act, legislation that will comprehensively address the ongoing threat posed by technology from foreign adversaries by better empowering the Department of Commerce to review, prevent, and mitigate information communications and technology transactions that pose undue risk to our national security.
The Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act would:
- Require the Secretary of Commerce to establish procedures to identify, deter, disrupt, prevent, prohibit, and mitigate transactions involving information and communications technology products in which any foreign adversary has any interest and poses undue or unacceptable risk to national security;
- Prioritize evaluation of information communications and technology products used in critical infrastructure, integral to telecommunications products, or pertaining to a range of defined emerging, foundational, and disruptive technologies with serious national security implications;
- Ensure comprehensive actions to address risks of untrusted foreign information communications and technology products by requiring the Secretary to take up consideration of concerning activity identified by other government entities;
- Educate the public and business community about the threat by requiring the Secretary of Commerce to coordinate with the Director of National Intelligence to provide declassified information on how transactions denied or otherwise mitigated posed undue or unacceptable risk.
- “Statement from National Security Advisor Jake Sullivan on the Introduction of the RESTRICT Act” via The White House
- “US senators unveil bipartisan bill empowering Biden to ban TikTok and other services” by Brien Fung via CNN
- “The war against TikTok is a distraction” by Dan Whateley via insider
- Introduction of Bill via Forbes on YouTube
- “TikTok ban bill: What you need to know” Interview with Sen. Mark Warner by Beck Quick via CNBC on YouTube
Response filed by Dr. Thaler to U.S. Copyright Office’s Motion for Summary Judgment
On Tuesday, Dr. Stephen Thaler filed a response in his federal court challenge against the U.S. Copyright Office‘s refusal to register AI generative art. Here’s what’s been going on and what’s in this new filing…
📖 Brief History 📖
Dr. Thaler created the AI system Creativity Machine. He attempted to register with the USCO an image that was the output of Creativity Machine. As part of the application for registration, he disclosed that the work was generative art and the output of the machine, listing the machine as the author and himself as the claimant. This didn’t fly with the USCO due to the (previously well-established?) human authorship requirement, so a dispute ensued which you can read more about in this article I wrote.
Once a final determinate was made by the USCO that they wouldn’t register the work, Dr. Thaler filed a lawsuit against the USCO seeking summary judgment on the issue. The USCO responded with a motion for summary judgment.
In this latest filing, Dr. Thaler argues:
🤖 No Human Authorship Requirement. The filing claims that the USCO failed to support its argument for an implied human authorship requirement, pointing to the plain language of the Copyright Act, and purports that “non-humans have been authors under the statute for more than a hundred years.”
💎 “this is perhaps the paradigmatic case of technological evolution requiring purposive statutory interpretation” [the word “the” is emphasized in the filing]
❌ An interesting argument that: “No case or other authority holds AI-generated works are inherently unprotectable, as the USCO urges. While dicta in various cases states that there is a need for human creativity, no one in these cases was considering artificial creativity, and no one could have reasonably foreseen the capabilities of modern AI. Even in dicta, the USCO points to no direct statement by the Supreme Court, the federal circuits, or even Commission on New Technological Uses of Copyrighted Works (CONTU), that an AI-generated work is not protectable under the Act.”
✅ The anonymous or pseudonymous authors protection alludes to the recognition of “works created by authors with no natural lifespan, in other words, non-human authors” and also throws in works made for hire into this analysis.
🧠 The filing also includes this line: “What the Court must contend with is that the AI in the present case does have intelligence, it is just artificial.” 🧐
👨 💻 The explanation surrounding the “control” and “ownership” of Creativity Machine are abundantly clear given the exchanges with the USCO.
🥇 The USCO “overstates the amount of weight its opinion should be granted” and the purpose of the Copyright Act should be considered.
Access the docket over on CourtListener.
Misclassified Workers Cause Headaches for YouTube Music
The contractors “constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act.” The decision says that “Employees will vote whether or not they wish to be represented for purposes of collective bargaining by Alphabet Workers Union.”
It remains to be seen whether or not the decision, by NLRB National Director Timothy Watson, remains upheld. If upheld, negotiations will have to take place between Google and the union.
In recent Creator Economy Law newsletters, I’ve written about the contract workers, by way of Cognizant, at YouTube Music officially going on strike in coordination with the Alphabet Workers Union (AWU). The dispute stems from Google’s return-to-office requirement for operations in Austin, TX, which was seen as an anti-union move by the company.
🔥 Takeaway: Classification of workers matters, even when working with third-party agencies to hire contractors.
Access the docket for Case No. 16-RC-305751.
FTC “weaponized” in Twitter probe, House Says
On Tuesday, and as part of the on-going political frenzy surrounding the “Twitter Files,” the House Judiciary Committee and its Select Subcommittee on the Weaponization of the Federal Government released an interim staff report titled, “The Weaponization of the Federal Trade Commission (FTC): An Agency’s Overreach to Harass Elon Musk’s Twitter.” As described in the press release, “The report details recently obtained new, nonpublic information that reveals how the federal government weaponized its authority against Twitter in the wake of Elon Musk’s acquisition of the company.”
- “Weaponization Select Subcommittee Releases Staff Report on FTC Harassment of Twitter” Committee Press Release
- “F.T.C. Intensifies Investigation of Twitter’s Privacy Practices” by Kate Conger, Ryan Mac and David McCabe via The New York Times
- “FTC Twitter Investigation Sought Elon Musk’s Internal Communications, Journalist Names” by Ryan Tracy via The Wall Street Journal
- “FTC probes Twitter data practices after Elon Musk’s layoffs” via The AP
- “FTC demanded Musk communications, names of journalists receiving internal files in Twitter probe, House Republicans say” by Jared Gans via The Hill, also “‘Weaponization’ subcommittee members spar over ‘Twitter Files’” by Emily Brooks and Rebecca Klar via The Hill
Facebook has officially reached 2 billion active daily users, a new milestone for the company. In a new blog post from Head of Facebook Tom Alison, the platform outlines its focus for the year, and the underlying AI tech that powers it all. The post highlights AI-powered discovery, the importance of creators and monetization, and messaging (such as DMs, Messenger, and Groups).
Reels Play, the program that offered payouts to creators for posting Reels to Facebook and Instagram, is being put on hold, according to Insider as reported at Engadget.
Meta is using a link between Facebook and Instagram to boost engagement and content across its two platforms, according to a report in The New York Times by Kalley Huang and Sheera Frenkel.
Last year, Meta introduced a prompt that popped up on Instagram when people posted a photo or story. The prompt asked Instagram users if they wanted to share their post to Facebook, too. To make the prompt go away, users had to click a big blue button to agree to share their Instagram posts on Facebook, or a smaller hyperlink to opt out. […] Reversing the setting requires clicking through multiple Instagram menus.
Umm… dark patterns, anyone?
Instagram is rolling out age verification tools in multiple countries, including Mexico, Canada, Japan, Australia, South Korea, and across Europe. Meta has also released its response to the Oversight Board’s recommendation it overhauls its VIP program, but critics are highlighting it isn’t enough to address the key concerns of the Board.
An EU-US Data Pact isn’t moving quickly enough to prevent Facebook from suspending its operations in the EU. At the same time, U.S. Senators are raising concerns over Meta’s opening up of its Horizon Worlds to younger teens.
In a win for the European Commission, WhatsApp has agreed to comply fully with EU rules, which involves more clearly informing users and “respecting their choices on contract updates.” The commitments follow a 2021 complaint by consumer groups filed against the company.
In the UK, WhatsApp and Signal are not happy about a new law that would require messaging apps to weaken their security on end-to-end message encryption by implementing technology that would identify child abuse material. According to the BBC, the companies are threatening to block access to their services in the UK.
Axios published an exclusive detailing the contents of a letter sent to the office of Sen. Josh Hawley (R-Mo.) by a former ByteDance employee that alleges TikTok’s U.S. data access controls are a lot weaker than they will admit.
TikTok announced Project Clover, “a program focused on creating a secure enclave for European TikTok user data. This initiative will introduce a number of new measures to strengthen existing protections and further align our overall approach to data governance with the principle of European data sovereignty.”
TechCrunch reports that TikTok is blocking link to app store listings in bios for any account except for business accounts. Creators should be mindful of how this might impact their direct sponsorship deals with mobile app developers, as well as commission-based links they may share when promoting apps that they think will earn them some cash.
Despite claims it removed eating disorder content, hashtags on TikTok tied to eating disorder content grew by 1.6 billion from November to December 2022, according to research by the Centre for Countering Digital Hate.
POLITICO put together a helpful map of the TikTok bans that have been sweeping across Europe.
Twitter didn’t work with EU regulators before rolling out its Twitter Blue verification, as it promised to do. Now, Twitter’s lead European Union privacy regulator is concerned. What other promises aren’t being kept? How about that ad revenue-sharing promise with creators? It’s still not here. On March 6th, Elon Musk tweeted: “It is a major priority to enable monetization by content creators! People need to make a living and prosper from their work. We need to make it possible to upload the content in the first place. That’s getting there.”
Musk continued to not keep his hands off his device to tweet more insanity. He mocked one of his workers based in Iceland who has muscular dystrophy and was simply trying to find out if they’d been fired or not. He also has created some copyright headaches for himself by getting involved in a DMCA takedown issue between two Twitter users, one a videographer and the other a user that allegedly reposted their video.
“Twitter is rolling out its ‘freedom of speech but not freedom of reach’ policy later this month, according to a Trust & Safety all hands meeting yesterday,” Platformer’s Zoë Schiffer shared on Twitter.
More Platform News
YouTube announced “Updated ‘Inappropriate language’ Ad-Friendly Guidelines” in which it detailed how it is rolling back some of its previously announced prohibitions on profanity. TubeFilter has coverage, plus you can watch YouTube’s Creator Insider update video. YouTubers have also started sharing the revenue splits on YouTube Shorts, and it’s not much.
Twitch published a blog post diving into the issue of explicit deepfake content, new policy updates and community resources.
Snap is also under fire for allegedly not following through with kicking children off its app.
Discord announced new AI features, including “an AI chatbot named Clyde, AutoMod AI, and Conversation Summaries, and launching an AI Incubator.”
LinkedIn is leveraging the power of AI to introduce “collaborative articles — knowledge topics published by LinkedIn with insights and perspectives added by the LinkedIn community.” However, The Verge identifies some early issues with the tech-powered conversations.
I’m on the waitlist for the new social media platform Blue Sky which is being developed on top of AT to offer a federated and decentralized social network. I recently shared an audio clip where I talk about decentralized social networks and the fediverse, or you can read my blog post on it.
Spotify‘s StreamOn event took place this week. Part of the announcement included a new look that drives the app experience that borrows heavily from TikTok, Instagram and YouTube, according to The Verge. Tubefilter also provided some exclusive coverage.
Age Verification and the Struggles to Age-Gating Platforms. Laws are now popping up all over the place, including Utah and Texas, in efforts to restrict access to social media platforms, and in some cases entire swaths of the internet, by verifying the user’s age. But, the practical aspects of implementing technologies that allow for this are causing privacy and tech experts to raise alarm bells.
U.S. and EU Collaboration on AI Starts. Back in January, the U.S. and EU signed an administrative arrangement to bring together experts from across the U.S. and Europe to further research on artificial intelligence (AI), computing, and related privacy protecting technologies. Axios writes: “The White House and the European Commission held their first meeting Tuesday to jumpstart a transatlantic AI research initiative aimed at both speeding up AI development and determining what regulations, if any, are needed,” according to a senior administration official. Over the next 60 days, the agencies from within the EU and the US will pull together guidance on the ethical application of AI to various subject areas and from there determine the next steps.
Splits on Copyright Statute of Limitations. An appeals court in Atlanta is allowing damages calculations to extend back beyond copyright law’s normal three-year statute of limitations, creating a circuit split. Isaiah Portiz has more over on Bloomberg Law. Read the full decision over on CourtListener.
Visual Effects Company Loses Against Disney. MOVA is motion capture software released by Rearden to capture a performer’s face and facial movements and then create an animation with the same movements. The software has been used in films from The Curious Case of Benjamin Button to Harry Potter to The Avengers. A lawsuit (one of many) was filed against several Disney subsidiaries alleging copyright and patent infringement claims over the use of the technology to animate Thanos in Avengers: Infinity War and Avengers: Endgame. However, they fail because, as the court writes, “the complaint fails to allege that the output files amount to protectable expression” and that the MOVA software was used. Read the full decision over on CourtListener. Loeb & Loeb also has a breakdown of the case.
- Avi Gandhi published an interesting newsletter issue that’s an interview with Gigi Robinson, M.S., BFA and explores “the three (3) kinds of influencer marketing and the nuances between marketing through content and influence.”
- An interesting take on the history of LiveJournal, Tumblr, and (potentially) Twitter, and the importance a platform’s user base plays in its success and downfall. “How a social network falls apart” by Gita Jackson via The Verge
- “How social fragmentation is creating more opportunities for advertisers” by Kimeko McCoy via DigiDay
- “The Next Brand Safety Battlefield Is AI-Based Audio, and It’s Surging on TikTok and YouTube” by Trishla Ostwal via AdWeek
- “LinkedIn Faces Growing Complaints From Recruiters Over Rising Prices” by Mark Matousek via The Information (Subscription Required)
- “Twitch relaxed its livestreaming exclusivity clause for creators. Will YouTube do the same?” by James Hale via TubeFilter
- “Hawley Introduces Bill Requiring Big Tech Companies Give Children’s Data Back to Parents” Press Release on the Parental Data Rights Act
- “Former Apple Executive Larry Jackson Launches Gamma, New Music Company With Usher, Rick Ross on Roster” By Shirley Halperin and Jem Aswad via Variety
I am in the middle of reading “The Future of the Professions” by Richard Susskind and Daniel Susskind. It’s a great exploration of technological advancements that are all around us, and how such advancements are (or will soon) impact the work of professionals. Will the change be an efficiency-focused build on what we have today? Or, will it be a transformational event that displaces professionals? Buy, download, or listen to a copy on Amazon.
Exploring the Impact on Copyrightability When Creating New Works Through AI
Join the Copyright Alliance and The Copyright Society for a panel discussion titled Exploring the Impact on Copyrightability When Creating New Works Through AI. The panelists, experts in the area of copyright authorship, will explain the different types of authorship under U.S. copyright law, and the potential pathways for asserting copyright ownership in works created using generative AI tools. In addition to practical legal considerations, the panelists will discuss policy issues that impact the authorship analysis, including incentivizing the use of AI technologies and protecting the rights of human authors. The event is free to attend. Please note that you will need to create a free account to register. After creating your free account, please click here to register and for more information.
We’re doing Creator Economy Law… LIVE!
What’s a better way to earn CLE credit than while also hanging out with some of the coolest IP, media, and technology attorneys and legal professionals in the world? Don’t miss the American Bar Association’s Annual IP Conference in Washington, D.C., April 12th – 14th. There is a lot more programming in addition to the Creator Economy Law panel.
AIPLA Spring Meeting 2023
It’s actually been a minute since I made it out to the West Coast, so I’m super excited! It’s also my first time in Seattle 👏🏻 and also my first AIPLA conference.
Let me know if you’ll be there or in the area. Would love to plan a time to meet up!
Ava Max released an incredible album, Diamonds & Dancefloors, at the beginning of the year. She also recently dropped an official song visualizer (not a full music video) for the track Weapons. This song feels perfect for right now, so enjoy!
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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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