And here we go again. We’ve had many, many posts over recent years discussing how, in the digital age, you often don’t actually own what you’ve bought. And before the comments section gets filled with perplexed but rather educated folks talking about how the all these cases involve products in which the terms of service clearly outline that this is a license and not an actual product being bought, just stop. We all know that barely anyone reads a ToS these days and the confusion and anger that occurs in the public is proof of it. So clearly companies are not doing nearly enough to inform their customers of what they are actually purchasing. And if you think that problem is easily solved by staunchly insisting that Nancy down the street steep herself in legalese, then you’re completely divorced from reality.

Which brings us to Sony. Late last year we discussed how when Sony’s deal with the Discovery network ended, it caused a bunch of content to simply disappear from PlayStation owners who bought the content in the PS Store. Due to something completely outside of the public’s control, people who bought content, or thought that’s what they were doing, suddenly lost that content. Without refunds. Or an apology.

And now it’s happening all over again, due to Sony’s acquisition of Crunchyroll all the way back in 2021. Sony-owned Funimation is shutting down its app and website in April, with the company converting Funimation accounts to Crunchyroll accounts instead. All good right? Well…

Funimation, a Sony-owned streaming service for anime, recently announced that subscribers’ digital libraries on the platform will be unavailable after April 2. For years, Funimation had been telling subscribers that they could keep streaming these digital copies of purchased movies and shows, but qualifying it: “forever, but there are some restrictions.”

But soon, people who may have discarded or lost their physical media or lack a way to play DVDs and Blu-rays won’t have a way to access the digital copies that they were entitled to through their physical copy purchase.

Funimation’s announcement is roughly as tone-deaf as it gets. They explain all of these libraries won’t carry over to Crunchyroll because that platform doesn’t support Funimation’s digital content and then makes some vague comments about how Crunchyroll is continuously looking to make itself better. Which, whatever, because that doesn’t change the fact that a bunch of people bought a bunch of digital content that was pitched mostly as being theirs “forever” only to have it all nuked into oblivion as a result of a Sony acquisition. Good times.

Here again, we see that people don’t actually own what they’ve bought, much to their confusion.

Funimation’s support page for digital copies (which, as of this writing, says it hasn’t been updated in four years) notes that Funimation’s idea of forever includes restrictions and links to Funimation’s Terms of Use. Those terms state that Funimation can “without advance notice… immediately suspend or terminate the availability of the Service and/or content (and any elements and features of them), in whole or in part, for any reason.” It also says that the Funimation website, apps, service, and all of its content are owned by Funimation and its partners.

So even if you, understandably, thought you were buying a “forever” digital copy, the wordy truth is that you never really owned it. Yet, it wouldn’t be surprising to hear that someone relying on digital copies to preserve their purchased media didn’t properly understand (or read) those terms before discarding their physical copies.

Thanks for the money, suckers! Hope you enjoyed the years-long forever!

Man. I have seen some shit since taking up a regular post at this fine website. I have had my mind blown with an alarming frequency. I have been sent into waves of mocking laughter more times than anyone writing for a respected website should admit. I have, in other words, been ruined by the internet.

Despite all of this unaddressed trauma, I continue to write for this site. Why? Well… several reasons. First and foremost, I enjoy writing. This site has an amazing group of regular readers. Some days, the hate is as enjoyable as the love. And, if nothing else, I’m provided constant opportunities to see things I’ve never seen before, even considering my many trips around the internet block. In other words, I need help but still prefer the company of others in my same position.

We’re seeing some amazing stuff right now. Fentanyl does indeed have the power to kill. People unfamiliar with its power are at risk of overdosing.

But fentanyl is, at its base, just another opiate. These have always presented this sort of risk, especially because getting high is almost indistinguishable from getting dead, which tends to result in a higher number of overdoses.

Meanwhile, everyone on one side of the drug experience (the DEA, FBI, and the local media) portrays this drug as capable of killing people who aren’t even ingesting it. Every drug bust is broken down to the minimum lethal level — 2 milligrams — by government spokespersons or journalists willing to push the government’s narrative forward.

While it’s likely true two milligrams can kill someone, that dosage would most likely only be able to end the life of an infant forced to ingest this dosage while having its mouth and nose held shut by DEA agents or entirely-too-credulous reporters.

Then there’s the DEA’s insistence drug cartels are not just seeking to addict children but kill them by offering up multi-colored variations of fentanyl products. While it’s undeniably true the drug trade often involves death, very few drug dealers actually want their customers to die. If kids are uniquely susceptible to a product, it makes little sense to market to them, especially when their funds are limited to allowances and birthday cards.

So, it’s unlikely cartels are marketing to children. But that hasn’t stopped the DEA from claiming otherwise. The real reason for multi-colored pills isn’t to make them attractive to children (who are capable of ending their own lives using any number of OTC and prescription medicines that are also multi-colored). It’s marketing. It’s brand differentiation and an indicator to buyers what product they’re getting and what its potency is.

While the government is busy claiming drug cartels are turning deadly drugs into candy, the government is also seeking to obtain deadly drugs in the form of candy. I am not making this up. Here’s Julia Ainsley with the details for NBC News.

The chief medical officer for Customs and Border Protection pressured his staff to order fentanyl lollipops for him to take to the United Nations General Assembly meeting in New York in September, according to a whistleblower report sent to Congress on Friday. 

The whistleblowers said Dr. Alexander Eastman’s staff raised questions about why he would need to order fentanyl lollipops to take with him, and he answered that it was part of his duties to make sure that any injured CBP operators were cared for, making the argument that the lollipops would be necessary for pain management should an emergency occur.

lololololollipop

This sounds like the actions of a person with a drug problem. This sounds exactly like Dr. Eastman wanted a personal stash of fentanyl edibles to get him through the day(s). What this doesn’t sound like is an actual medical need for these products.

Dr. Eastman claimed he was concerned about those flying him to his UN appointment via a Marine helicopter. He also claimed they might be useful in case he or the others on his flight “encountered a patient in need.”

The real reason can only be imagined. But there are some eye-opening things here:

Eastman’s staff initially responded to his request by explaining that Narcan, which can save the lives of those who overdose on fentanyl, has been requested for CBP operations in the past, but not fentanyl itself. The whistleblowers say staff members raised questions about how he would store the lollipops and what he would do with unused fentanyl at the end of the operation, according to the report. 

Eastman responded by writing his own policy regarding procurement of Schedule II narcotics, which omitted any mention of how narcotics were to be stored and disposed of, the whistleblowers allege.

Absolutely on the up and up here. Definitely not the actions of an opiate addict. I mean, we all know the saying: a thief will steal your stuff; a junkie will help you look for it.

On top of this, the whistleblowers pointed out the doctor was an uninvited guest. The chief medical officer is rarely, if ever, asked to attend UN general assemblies. But Eastman inserted himself (and his desire for opioid lollipops) into this equation by insisting his presence was necessary because [squints at report] the CBP was assisting the Secret Service with event security. The addition of a doctor with fentanyl lollipops would apparently make this security even more secure.

While it’s nice the whistle was blown, it appears Dr. Nick Eastman still retains his position as the chief medical officer for the CBP. I guess that’s good news for the boys in green, who will be able to indulge their opiate sweet tooth without fear of reprisal. On top of that, we’re now assured it’s safe to bring opioid edibles on board a government aircraft without having to worry about killing everyone on board with these airborne contaminants. Let’s hope Dr. Eastman continues to maintain his position while simultaneously undercutting the federal government’s “every milligram is a killer” narrative. The more he destroys his own reputation, the more he dismantles anti-drug hysteria that makes people stupider, rather than safer.

In our coverage of the problems with KOSA and other legislative pushes to “protect the children” online, we usually (for obvious reasons) come at the subject from the technology side, and look at all the ways these laws misunderstand the internet. But that’s not their only flaw: these proposals also tend to lack any real understanding of child safety. Maureen Flatley is someone who has been vocal from the other side, having covered child safety issues for about as long as we’ve covered tech, and she joins us on this week’s episode to discuss how KOSA and its ilk aren’t rooted in what we really know about keeping kids safe.

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Next week, the Supreme Court will hear oral argument in NetChoice v. Paxton and Moody v. NetChoice. The cases are about a pair of laws, enacted by Texas and Florida, that attempt to force large social media platforms such as YouTube, Instagram, and X to host large amounts of speech against their will. (Think neo-Nazi rants, anti-vax conspiracies, and depictions of self-harm.) The states’ effort to co-opt social media companies’ editorial policies blatantly violates the First Amendment.

Since the laws are constitutional trainwrecks, it’s no surprise that Texas’s and Florida’s legal theories are weak. They rely heavily on the notion that what social media companies do is not really editing — and thus is not expressive. Editors, Texas says in a brief, are “reputationally responsible” for the content they reproduce. And yet, the state continues, “no reasonable observer associates” social media companies with the speech they disseminate.

This claim is absurd on its face. Everyone holds social media companies “reputationally responsible” for their content moderation. Users do, because most of them don’t like using a product full of hate speech and harassment. Advertisers do, out of a concern for their “brand safety.” Journalists do. Civil rights groups do. Even the Republican politicians who enacted this pair of bad laws do — that’s why they yell about how “Big Tech oligarchs” engage in so-called censorship.

That the Texas and Florida GOP are openly contemptuous of the First Amendment, and incompetent to boot, isn’t exactly news. So let’s turn instead to some delicious ironies. 

Consider that the right’s favorite social media addict, robber baron, and troll Elon Musk has single-handedly destroyed Texas’s and Florida’s case.

After the two states’ laws were enacted, Elon Musk conducted something of a natural experiment in content moderation—one that has wrecked those laws’ underlying premise. Musk purchased Twitter, transformed it into X, and greatly reduced content moderation on the service. As tech reporter Alex Kantrowitz remarks, the new approach “privileges” extreme content from “edgelords.”

This, in turn, forces users to work harder to find quality content, and to tolerate being exposed to noxious content. But users don’t have to put up with this — and they haven’t. “Since Musk bought Twitter in October 2022,” Kantrowitz finds, “it’s lost approximately 13 percent of its app’s daily active users.” Clearly, users “associate” social-media companies with the speech they host!

It gets better. Last November, Media Matters announced that, searching X, it had found several iconic brands’ advertisements displayed next to neo-Nazi posts. Did Musk say, “Whatever, dudes, racist content being placed next to advertisements on our site doesn’t affect X’s reputation”? No. He had X sue Media Matters.

In its complaint, X asserts that it “invests heavily” in efforts to keep “fringe content” away from advertisers’ posts. The company also alleges that Media Matters gave the world a “false impression” about what content tends to get “pair[ed]” on the platform. These statements make sense only if people care — and X cares that people care — about how X arranges content on X.

X even states that Media Matters has tried to “tarnish X’s reputation by associating [X] with racist content.” It would be hard to admit more explicitly that social-media companies are “reputationally responsible” for, because they are “associated” with, the content they disseminate.

Consider also that Texas ran to Musk’s defense. Oblivious to how Musk’s vendetta hurts Texas’s case at the Supreme Court, Ken Paxton, the state’s attorney general, opened a fraud investigation against Media Matters (the basic truth of whose report Musk’s lawsuit does not dispute).

Consider finally how Texas’s last-ditch defense gets mowed down by the right’s favorite Supreme Court justice. According to Texas, social-media companies can scrub the reputational harm from spreading abhorrent content simply by “disavowing” that content. But none other than Justice Clarence Thomas has blown this argument apart. If, Thomas writes, a state could force speech on an entity merely by letting that entity “disassociate” from the speech with a “disclaimer,” that “would justify any law compelling speech.”

Only the government can “censor” speech. Texas and Florida are the true censors here, as they seek to restrict the expressive editorial judgment of social-media companies. That conduct is expressive. Just ask Elon Musk. And that expressiveness is fatal to Texas’s and Florida’s laws. Just ask Clarence Thomas. Texas’s and Florida’s social-media speech codes aren’t just unconstitutional, they can’t even be defended coherently.

Corbin Barthold is internet policy counsel at TechFreedom.

Well… this is an unexpected (and fun!) turn of events. The EU Commission has spent most of the last couple of years trying to talk EU members into voting in favor of weakened encryption, if not actual encryption backdoors. You know, for the children.

On the table are things ranging from mandated client-side content scanning to the compelled breaking of encryption whenever law enforcement wants access to communications. These plans — including parallel efforts by the UK government (which is no longer an EU member) — have attracted more opposition than support, but that hasn’t stopped the commission from moving forward with these efforts, even when its own legal counsel has stated these mandates would violate EU laws.

While it’s possible (but extremely unwise) to blow off your own internal legal guidance to get with the encryption breaking, it’s much more difficult to ignore overriding external legal guidance that says what you’re trying to do is blatantly illegal. You can always hire more subservient lawyers if you don’t like what’s being said by the ones you have. But you can’t blow off the European Court of Human Rights quite as easily.

As Thomas Claburn reports for The Register, a long-running case involving (of all things) the Russian government’s attempt to force Telegram to decrypt communications has resulted in a loss that will be felt by all of the EU’s anti-encryption lawmakers.

The European Court of Human Rights (ECHR) has ruled that laws requiring crippled encryption and extensive data retention violate the European Convention on Human Rights – a decision that may derail European data surveillance legislation known as Chat Control.

The court issued a decision on Tuesday stating that “the contested legislation providing for the retention of all internet communications of all users, the security services’ direct access to the data stored without adequate safeguards against abuse and the requirement to decrypt encrypted communications, as applied to end-to-end encrypted communications, cannot be regarded as necessary in a democratic society.”

Ouch. Good luck pushing anti-encryption mandates when the court has declared them unnecessary in a democratic society. And, somehow, we have the Russian government to thank for this turn of events.

The case dates back to 2017, which is when Russia’s Federal Security Bureau (FSB) tried to force Telegram to engage in compelled decryption of Anton Podchasov’s communications. Podchasov challenged the order in Russia but the Russian court dismissed it. So, Podchasov brought the matter to the ECHR because — prior to its 2022 invasion of Ukraine — Russia was still part of the Council of Europe and (at least theoretically) subject to ECHR rulings.

Well, Russia may have exited the Council with its illegal invasion, but the courtroom challenge was still active. The final ruling — which will have zero effect on how Russia handles compelled decryption — is throwing a considerably sized wrench into the mechanations of anti-encryption legislators in the EU government.

The court concluded that the Russian law requiring Telegram “to decrypt end-to-end encrypted communications risks amounting to a requirement that providers of such services weaken the encryption mechanism for all users.” As such, the court considers that requirement disproportionate to legitimate law enforcement goals.

The EU Commission dropped its anti-encryption demands last summer following considerable pushback from EU member governments. But that doesn’t mean those desires aren’t still there, even if they’re dormant at the moment.

But this ruling will make it almost impossible to resurrect most of the EU Commission’s anti-encryption efforts. The court’s ruling makes it clear there’s no legally justifiable reason for breaking end-to-end encryption. And the ancillary stuff — like client-side scanning and extensive logging demands — is far less likely to receive a warm welcome from member states, not to mention EU courts, following this ruling (even as the European Court of Human Right is not a part of the EU, its judgments cover the EU members as well as other members in the Council of Europe).

Most of the stuff the EU Commission has been trying to enact over the past few years has been declared illegal. If it wants to do these things, it will have to change several other laws first. And that effort is far less likely to succeed, since changing these laws means breaking the law. You can always write illegal laws. You just can’t enforce them.

So, unless the EU Commission has the power to talk its members into backing its preferred brand of friendly fascism, it will just have to dial back its expectations. Sure, those who think any means can be justified by the ends will throw up their hands in despair and proclaim this is the beginning of a new criminal apocalypse. But for everyone else, this ruling means their communications will remain secure — both from EU government agencies as well as entities far more malicious.

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By now you know that Senator Richard Blumenthal has released a new version of KOSA, the misleadingly named Kids Online Safety Act, that he pretends fixes all the problems. It doesn’t. It still represents a real threat to speech online, and in particular speech from LGBTQ users. This is why Blumenthal, a prominent Democrat, is putting out press releases including supportive quotes from infamous anti-LGBTQ groups like the Institute for Family Studies and the “American Principles Project” (one of the leading forces behind anti-trans bills across the US). Incredibly, it also has an approving quote from NCOSE, formerly known as “Morality in Media,” a bunch of prudish busybodies who believe all pornography should be banned, and who began life trying to get “salacious” magazines banned.

When a bill is getting supportive quotes from NCOSE, an organization whose entire formation story is based around an attempt to ban books, you know that bill is not good for speech.

Why is a Democratic Senator like Blumenthal lining up with such regressive, censorial, far right nonsense peddlers? Well, because he doesn’t give a shit that KOSA is going to do real harm to LGBTQ kids or violate the Constitution he swore an oath to protect: he just wants to get a headline or two claiming he’s protecting children, with not a single care about how much damage it will actually do.

Of course, as we noted, the latest bill does make it marginally more difficult to directly suppress LGBTQ content. It removed the ability of state Attorneys General to enforce one provision, the duty of care provision, though still allows them to enforce other provisions and to sue social media companies if those state AGs feel the companies aren’t complying with the law.

Still, at least some of the MAGA crowd feel that this move, making it marginally more difficult for state AGs to try to force LGBTQ content offline means the bill is no longer worth supporting. Here’s Charlie Kirk, a leading MAGA nonsense peddler who founded and runs Turning Point USA, whining that the bill is no longer okay, since it won’t be used to silence LGBTQ folks as easily:

If you can’t read that, it’s Charlie saying:

The Senate is considering the Kids Online Safety Act (KOSA), a bill that looks to protect underage children from groomers, pornographers, and other predators online.

But the bill ran into trouble because LGBT groups were worried it would make it too easy for red state AGs to target predators who try to groom children into mutilating themselves or destroying themselves with hormones and puberty blockers.

So now, the bill has been overhauled to take away power from from state AGs (since some of them might be conservatives who care about children) and instead give almost all power to the FTC, currently read by ultra-left ideologue Lina Khan. Sure enough, LGBT groups have dropped all their concerns.

We’ve seen this pattern before. What are the odds that this bill does zero to protect children but a lot to vaguely enhance the power of Washington bureaucrats to destroy whoever they want, for any reason?

If you can get past his ridiculous language, you can see that he’s (once again, like the Heritage Foundation and KOSA co-sponsor Senator Marsha Blackburn before him) admitting that the reason the MAGA crowd supports KOSA is to silence LGBTQ voices, which he falsely attacks as “groomers, pornographers, and other predators.”

He’s wrong that the bill can’t still be used for this, but he’s correct that the bill now gives tremendous power to whoever is in charge of the FTC, whether its Lina Khan… or whatever MAGA incel could be put in place if Trump wins.

Meanwhile, if Kirk is so concerned about child predators and groomers, it’s odd you never see him call out the Catholic church. Or, his former employee who was recently sentenced to years in jail for his “collection” of child sexual abuse videos. Or the organization that teamed up with Turning Point USA to sponsor an event, even though the CEO was convicted of “coercing and enticing” a minor. It’s quite interesting that Kirk is so quick to accuse LGBTQ folks of “grooming” and “predation,” when he keeps finding actual such people around himself, and he never says a word.

Either way, I’m curious if watching groups like TPUSA freak out about this bill not being censorial enough of LGBTQ content will lead Republicans to get cold feet on supporting this bill.

At the very least, though, it’s a confirmation that Republican support for this bill is based on their strong belief that it will censor and suppress LGBTQ content.

Now that subscriber growth has slowed, streaming TV giants have taken the predictable turn of making their services shittier and more expensive to deliver Wall Street (impossibly) unlimited quarterly revenue growth.

That means higher prices, annoying new surcharges, greater restrictions, more layoffs, more cut corners, worse customer service, and a lot of pointless mergers designed specifically to goose stock valuations and provide big fat tax breaks.

The king of said “growth for growth’s sake” consolidation was of course the AT&T–>Warner Brothers–>Discovery series of mergers, which resulted in no limit of brand degradation, layoffs, and absolute chaos in the empty pursuit of unlimited scale (aka “enshittification”). The dumb merger already killed Mad Magazine, HBO, and countless television shows, driving millions of subscribers to the exits.

But Max executives clearly aren’t done with ham-fisted efforts to make stocks go up. This week Max executives decided that they’d make John Oliver’s Last Week Tonight harder to watch by no longer making show clips available on YouTube the next day:

The goal was to apparently drive subscribers to the Max streaming service. But because they’re apparently too cheap to pay residuals and hosting costs, Max also no longer lets users watch old seasons of the show, meaning that only the last two seasons of the show are available. In short: the quest for unrealistic quarterly growth sooner or later creates perverse incentives to cannibalize brand quality.

Again, this is all par for the course for an industry that learned absolutely nothing from the scale-chasing disaster that ultimately was traditional cable TV. They’re going to continue on this path until they see a dramatic subscriber exodus to cheap or free services (whether that’s TikTok and Twitch or, more obviously, piracy), at which point they’ll blame everything but themselves (VPNs! China!) for the self-inflicted wound.

As anyone paying attention to the video game industry will already know, the last couple of weeks have seen a great deal of rumor and speculation as to the state of Xbox-istan. What started as unsubstantiated rumors suggesting that Xbox was about to make some of its Microsoft-exclusive titles crossplatform to other consoles morphed into more outlandish theories that Microsoft was going to stop making Xbox consoles altogether. Xbox chief Phil Spencer addressed the latter of those rumors in an internal memo, alongside a promise to host a “Business Update Event.”

And so that event happened. Was there information in it? Yes! Did it clear everything up? Kind of! Was it yet another example of vague or confusing communication coming out of Xbox’s leadership? How could it possibly be otherwise?

We’ll start with the rumored crossplatform titles. Much of the rumor mill correctly suggested that there would be 4 games that would be going crossplatform soon. And that turns out to have been true! They’re just not the ones people wanted. And you don’t get to know officially which games we’re talking about, either.

After weeks of rumors around its strategy regarding Xbox console exclusives, Microsoft announced today that it is “going to take four games to the other consoles.” The company stopped short of announcing what those now non-exclusive games would be, but it did point out that neither Starfield nor Bethesda’s upcoming Indiana Jones and the Great Circle would be appearing on other consoles.

All four of the soon-to-be multi-platform titles are “over a year old,” Xbox chief Phil Spencer said in an “Updates on the Xbox Business” podcast video. The list includes a couple of “community-driven” games that are “first iterations of a franchise” that could show growth on non-Xbox consoles, as well as two others that Spencer said were “smaller games that were never really meant to be built as kind of platform exclusives… I think there is an interesting story for us of introducing Xbox franchises to players on other platforms to get them more interested in Xbox.”

Now, on the one hand, more information getting to the public is generally good. And I’m sure there is some sort of business reason why the announcement of what these four games are can’t be officially made, yet. But I also can’t for the life of me understand why this announcement would be made without being able to name the games. This still would typically allow for a lot of rumors to float around, so what was the point?

Fortunately, in this case, journalists did the work and appear to have answered that question for us, such that the speculation will probably be held at bay.

The Verge cites “sources familiar with Microsoft’s plans” in reporting that Hi-Fi Rush, Pentiment, Sea of Thieves, and Grounded are the four multi-platform titles Microsoft is referencing today.

“The teams that are building those [multi-platform] games have announced plans that are not too far away,” Spencer said, “but I think when they come out, it’ll make sense.”

But then there was this.

Spencer stressed during the podcast that this limited multi-platform move does not represent “a change to our fundamental exclusive strategy.” He added that “we’re making these decisions for some specific reasons,” citing “the long-term health of Xbox and a desire to “use what some of the other platforms have right now to help grow our franchises.”

To which my immediate reply is: what the hell is your exclusive strategy? Seriously, the messaging on this very important piece of the equation has been all over the damned place. And because of that, someone in Spencer’s position does not get to simply trot this line out there as if everyone in the gaming public is already on the same page as he is. In 2020, Spencer made comments suggesting that crossplatforming titles was not needed for Xbox to succeed with specific game franchises. Then another Xbox executive suggested that games would have timed Microsoft exclusives later that same year. Then, in 2021, Spencer announced that the next Elder Scrolls game would be a Microsoft exclusive. Fast forward roughly one year later and you have Spencer himself stating that exclusive titles were not the future for Xbox, just as Starfield was announced as a, you guessed it, Microsoft exclusive.

It’s in that bowl of tangled informational linguine that Spencer has the gall to state publicly that these latest plans don’t change Xbox’s “fundamental exclusive strategy.” And if you don’t understand why that is so infuriating, you’re lost.

And so this is just more Microsoft. Even attempts at being more open and communicative result in confusion and frustration.

Generative AI continues to be the hot topic in the digital world – and beyond. A previous blog post noted that this has led to people finally asking the important question whether copyright is fit for the digital world. As far as AI is concerned, there are two sides to the question. The first is whether generative AI systems can be trained on copyright materials without the need for licensing. That has naturally dominated discussions, because many see an opportunity to impose what is effectively a copyright tax on generative AI. The other question is whether the output of generative AI systems can be copyrighted. As another Walled Post explained, the current situation is unclear. In the US, purely AI-generated art cannot currently be copyrighted and forms part of the public domain, but it may be possible to copyright works that include significant human input.

Given the current interest in generative AI, it’s no surprise that there are lots of pundits out there pontificating on what it all means. I find Christopher S. Penn’s thoughts on the subject to be consistently insightful and worth reading, unlike those of many other commentators. Even better, his newsletter and blog are free. His most recent newsletter will be of particular interest to Walled Culture readers, and has a bold statement concerning AI and copyright:

We should unequivocally ensure machine-made content can never be protected under intellectual property laws, or else we’re going to destroy the entire creative economy.

His newsletter includes a short harmonized tune generated using AI. Penn points out that it is trivially easy to automate the process of varying that tune and its harmony using AI, in a way that scales to billions of harmonized tunes covering a large proportion of all possible songs:

If my billion songs are now copyrighted, then every musician who composes a song from today forward has to check that their composition isn’t in my catalog of a billion variations – and if it is (which, mathematically, it probably will be), they have to pay me.

Moreover, allowing copyright in this way would result in a computing arms race. Those with the deepest pockets could use more powerful hardware and software to produce more AI tunes faster than anyone else, allowing them to copyright them first:

That wipes out the music industry. That wipes out musical creativity, because suddenly there is no incentive to create and publish original music for commercial purposes, including making a living as a musician. You know you’ll just end up in a copyright lawsuit sooner or later with a company that had better technology than you.

That’s one good reason for not allowing music – or images, videos or text – generated by AI to be granted copyright. As Penn writes, doing so would just create a huge industry whose only purpose is generating a library of works that is used for suing human creators for alleged copyright infringement. The bullying and waste already caused by the similar patent troll industry shows why this is not something we would want. Here’s another reason why copyright for AI creations is a bad idea according to Penn:

If machine works remain non-copyrightable, there’s a strong disincentive for companies like Disney to use machine-made works. They won’t be able to enforce copyright on them, which makes those works less valuable than human-led works that they can fully protect. If machine works suddenly have the same copyright status as human-led works, then a corporation like Disney has much greater incentive to replace human creators as quickly as possible with machines, because the machines will be able to scale their created works to levels only limited by compute power.

This chimes with something that I have argued before: that generative AI could help to make human-generated art more valuable. The value of human creativity will be further enhanced if companies are unable to claim copyright in AI-generated works. It’s an important line of thinking, because it emphasizes that it is not in the interest of artists to allow copyright on AI-generated works, whatever Big Copyright might have them believe.

Follow me @glynmoody on Mastodon and on Bluesky. Originally published to Walled Culture.