Would you believe that Disney’s famously copyright-maximalist lawyers have just brought us a nice victory for fair use?

Earlier this year, we wrote about disgraced former Congressman George Santos suing Disney and Jimmy Kimmel after Kimmel used some of Santos’ Cameo videos (that Kimmel had secretly requested) in a, well, somewhat trollish fashion. Santos, who was drummed out of Congress after facing a bunch of charges regarding questionable handling of campaign funds, started promoting that he would record Cameo videos for between $350 and $500 a video.

At one point, he had bragged about how many people had paid him for Cameo videos. This resulted in Kimmel having his staff purchase some Cameo videos, which made Santos look silly. The videos were then played on Kimmel’s ABC late night show. Santos claimed that the videos were purchased under a “personal” use license, which was a lot less expensive than a commercial use license.

The argument was that the videos were used “commercially,” which meant that the license had been violated, and the videos infringed on Santos’ copyright. In my initial write-up of the case, I pointed out that Kimmel had a very strong fair use claim. Some commentators felt that Santos’ argument was a bit stronger than I made out, but it appears the judge in the case, Denise Cote, who has been involved in a number of high-profile copyright cases, agreed with me that it was fair use.

Notably, she granted Disney and Kimmel’s motion to dismiss on fair use grounds. That’s important because some people believe that fair use shouldn’t be decided so early in a case. Either it should go to the summary judgment stage or (much worse) is an issue for a jury to decide.

However, Cote says here that Kimmel’s use was pretty obviously fair use. She notes that the Second Circuit has said that in obvious fair use cases, you can find fair use at the motion to dismiss stage:

The Second Circuit has specifically acknowledged “the possibility of fair use being so clearly established by a complaint as to support dismissal of a copyright infringement claim.”

As in most fair use cases, the court went through the basic four factors test required to determine fair use. The court awarded the first factor (purpose of the use) to Disney/Kimmel because it was clearly about commentary on Santos:

In short, a reasonable observer would understand that JKL showed the Videos to comment on the willingness of Santos — a public figure who had recently been expelled from Congress for allegedly fraudulent activity including enriching himself through a fraudulent contribution scheme — to say absurd things for money. Thus, the Videos were used for political commentary and criticism, purposes that do not supersede the “objects” of the original Videos.

The fact that the use of the videos made Santos look bad doesn’t matter:

Santos’s argument that the defendants should not be able to “seek refuge in the fair use concept of transformation that they themselves manufactured through deceit” finds no support in copyright law. Defendants’ conduct may have been deceptive and unkind, but the Supreme Court in Warhol emphasized that whether a work is transformative turns on neither the “subjective intent of the user,” 598 U.S. at 544, nor the “stated or perceived intent of the artist.” Id. at 545 (citation omitted). A court must instead conduct “an objective inquiry into what use was made, i.e., what the user does with the original work.” Id. Here, the purpose of the defendants’ use was clearly for criticism and commentary of the Videos themselves and their author.

While not always true, the first factor is often the key to winning fair use. The fact that it was found to be favoring Kimmel here basically makes the rest of the analysis less important, but even so, the rest of the factors either favor no one or Kimmel anyway.

On the second factor, the nature of the work, the court says this is mostly neutral, but perhaps favors Kimmel/Disney slightly. The third factor, how much of the work was used, is also deemed to be neutral. It did use the entirety of the work, as other courts have found, but that’s fine if you need to use the entirety of the work for the fair use at hand.

Copying “the entirety of a work is sometimes necessary to make a fair use.” Swatch Group Management Services Ltd. v. Bloomberg L.P., 756 F.3d 73, 90 (2d Cir. 2014). The “ultimate question under this factor is whether the quantity and value of the materials used are reasonable in relation to the purpose of the copying.”….

…. The use of the Videos to criticize and comment on a public figure would have been undermined by showing less than the entirety of the Videos, because the audience would not know whether Santos had indeed said everything in the requests.

Then there’s the fourth factor: the effect on the market. As I had noted in my original piece about the complaint, it would be difficult to argue that Kimmel’s use would harm the market. And, indeed, that’s what the court found as well:

Santos argues that defendants’ use devalued the market for Cameo videos, including Santos’s, by “undermining the integrity” of the Cameo.com platform. Santos does not explain how any impact on the popularity of the Cameo platform — which is entirely speculative — impacts more specifically the public interest in the creative production of new expression. Moreover, the FAC identifies no harm to the potential or existing market for the Videos that Santos created for the defendants, other than the “very use at bar.” Swatch, 756 F.3d at 91 (citation omitted). Thus, this factor weighs in favor of fair use.

Put it all together and you have two mostly neutral factors and two that weigh towards fair use, and thus: fair use.

Taking all four factors into consideration, the defense of fair use is clearly established by the FAC and documents integral to it. The defendants’ use of the Videos was transformative; “transformative uses tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.”

The court also rejects the breach of contract claims, saying that those are basically arguing the same thing as the copyright claims, and are thus pre-empted.

It wouldn’t surprise me if Santos appeals, but this is a good clean, fair use win. Disney’s copyright lawyers aren’t regularly known for arguing on behalf of fair use, but in this case they were right to, and it’s nice to see the court agree.

Update: And, yup, Santos has already told the court that he’s appealing.

Steam store page – Twitter/X – Wikipedia

I know that I’m extremely late when it comes to the Palworld hype. Palworld released in early January 2024 and currently, since there aren’t a lot of updates dropping, the hype died out. Yet, the roadmap looks extremely promising. Since this game is still in early access, I’m always hesitant in writing about the game. Since, you never know which mechanics or things will change and evolve during the early access period. Especially since we are currently only at v0.1.5.1. So, I decided to hold off on my first impression/review article for now. But, I wanted to talk about this game. So, here are some things I’d love to see in the full version of Palworld or even in one of the next updates.

First of all, what is a Palworld?

Palworld is a combination of several games, all thrown into one. It’s easy to describe Palworld with saying which games it combines.

Foremost, at its core, it’s a game you can somewhat compare to Ark Survival Evolved. When I first started playing, I noticed the similarities right away. The way how you have a crafting system to build your base, and you have monsters running around you can tame/catch is totally here as well.

I haven’t played a lot of Ark, so I can’t say if this mechanic is also present in Ark… But, the fact you can use your monsters to preform tasks in your base reminded me quite a lot of The Survivalists. A game where you are stranded on an island, and you can train monkeys to preform actions for you. The big difference is that now certain monsters can only preform certain tasks, instead of the monkeys just copying you.

Now, a lot of other articles describe this game as Pokémon with guns. After playing this game, I think that’s a somewhat unfair comparison. When I think Pokémon, I think a journey with gyms and an evil team. I think turn based battles and a big ending tournament as its conclusion. While some Pals share a very similar design language to some Pokémon, most of the mechanics of what makes a Pokémon game aren’t in this game. The other big mechanic is the capture mechanic, but by now this isn’t exclusive to Pokémon games anymore. Especially since we have games like Coromon.

There are also influences of the latest Zelda games. Especially Tears of the Kingdom. There are these huge, strong bosses roaming around on the huge open world map, you can beat at any time. Also, the korok seeds to upgrade your character are also here in the form of effigies and Pal souls to upgrade your monsters.

This game really feels like the developers looked at all the games they liked playing, looked at what worked and threw it all together into one pot and shook it until it all clicked together. The mechanics of this game really click extremely well together. If I didn’t know any better, I wouldn’t be surprised if I said that this was a finished game.

There are some silly bugs here and there and in some spots, this game feels unfinished. But, overall the game we have currently is amazing and if you would enjoy a game like this after reading what I wrote here… Give this game a try. I only told you the most basic things in this game. This game is a survival game with elements from a lot of other games like those I have already mentioned but also Minecraft, Dragon Quest Builders and various others.

Let’s talk improvements

While the game is a lot of fun to play at the moment, there are some things I wish that were improved or updated. While you get a lot of warnings that there are: save corruption bugs, crashes and bugs… Besides sometimes the lighting engine giving up for a moment or the AI of the pals or enemies doing some funky stuff, I haven’t seen too many worrying things.

Take for example this floating rock screenshot here. I have explored roughly half of the map after 35 hours of play, and this was the only floating rock I could find. That’s extremely impressive, especially since if you look at the size of the map… It isn’t small at all. In the future, new islands and area’s will be added so if they deliver them with this kind of quality, I have no complaints.

Well, I do have one recommendation. I’d love to see more landmarks in the map. Currently, almost all the landmarks in the game are based upon the terrain. I’d love to see more villages or ruins of them. I loved finding these things in the Zelda games and letting my mind wonder what happened there. It’s a very difficult balance act, since too many landmarks would make the map feel crowded and limit the amount of possible base locations.

Basically, I’d love more reasons for me to go exploring these regions and get unique rewards. Besides completing the Paldex, there isn’t a lot of reason to go exploring in certain area’s. And when you have set up the right kind of farms and work stations for your pals in your bases, the chance you run out of resources is rather small.

Speaking about bases, currently you can only have three bases. Most likely, this is done to improve the multiplayer performance. Since, the game emulates the three bases in the background, so you can easily have a base close to big ore clusters to farm those while you are working in your other base. If you don’t place a cap on those, it’ll tank the performance of any computer or server. Yet, I’d give the tools to the player to increase the cap. Personally, I think Minecraft has one of the best systems with the game rules. You can almost change anything to your playstyle and even disable or remove caps that are there for performance reasons. You already have quite a lot of toggles and sliders in Palworld, but I’d also expand on that.

Currently, the building system is decent, but it needs a lot of polishing up. The biggest problem I have with the building system are the stairs. It’s a nightmare sometimes to place stairs to go from one to another floor. Also, why can’t we place a full wall next to stairs? Most likely because some pals their hitbox would do some crazy stuff? Also, placing certain items or crafting stations on elevated floors doesn’t always work the best.

On top of that, besides the visual look of the floors, walls and ceilings, what’s the point of being able to unlock stone foundations? As a test, I tried to build a high tower with wood and one with stone. I didn’t find a difference. I’d love to see more meaning to what I unlock. Granted, stone can’t burn down. So, if you have any raids with flamethrower or fire enemies, your base isn’t in danger. But what’s the difference between stone and metal, then?

I honestly think that it’d be a bad idea if PocketPair only created more content and not make the mechanics have more depth. For example, something I’d love to see them implementing in the pal task system is a mechanic I love in Cult of the Lamb. When you welcome a new member in your cult, you can set the main focus of a member there. I’d love to see that you are able to set the main focus per pal. For example, when things are damaged in the base after a raid, you select one pal to go and get the repair kits and repair all damages first before going to do their usual tasks. Or when you have a pal that can do multiple things, and you mostly need that pal to pick up items, you could disable their other abilities. Maybe we need some items for that and those items can be only found in the wild, and we need to hunt for them. That’s an interesting idea to lure players out of their bases.

Dreaming like a madman

There are some UI elements I’d love to see change as well. First, I’d love to have a mini-map. The compass at the top of the screen only shows things in roughly 300m range, and that’s too short. Especially since in some areas the warp spots are spread quite far apart. A mini-map where you can pin certain things like the nearest warp spot would be amazing.

Secondly, in terms of the weapons. I’d love to see their stats before I craft them. Now it’s a guessing game that if I craft a certain weapon, if it’s going to be stronger or better than the one I currently have. It’d also be amazing if the durability is shown outside the inventory as well. There is some space in the UI element at the bottom right, so why not show it?

Now, in terms of the inventory. Sometimes I have issues with combining stacks of items. Sometimes I have to do it twice or thrice before they are combined. This is a rather small things, but outside of those… I don’t have a lot of small quality of life things that I could recommend. Maybe that if you sleep during the day in your bed, you can skip to night if you are hunting the nightlife pals?

Maybe there is one quality of life feature I think would be amazing. Quite often, when I’m hunting the stronger pals, I have my pal instructions set on “Focus on the same enemy”. I think it would have an amazing option if you have a feature where you are able to say to your pal if they are allowed to kill the wild pal or not. Since, if they are dead, you can’t capture them.

There is one attack that is a double-edged sword. In the Pokémon games, you have the self-destruct attack. You also have this one in Palworld, yet, some wild pals with this attack always take it over their other attacks. These bee pals always swarm me and instead of being able to weaken them, so I can catch them, I just get blown up. You barely have a chance to do any damage to weaken them to make capturing possible.

I just remembered one other quality of life feature. You can create saddles, gloves and other things to do special things with your pals. But, why I am allowed to create more than one? I mean, I can only use one of them at a time and they can be interchanged. So, if you make a saddle for a certain bird pal e.g. Helzephyr, that means you can use it on all Helzephyrs you catch.

But the biggest quality of life feature PocketPair could add is a mini-map inside caves/dungeons. The times I almost got lost in these caves is insane. Especially since there are only a handful of rooms in these and it’s easy to get turned around and confused.

Now, to completely change the subject… I wish there was more music in the game. The soundtrack in this game is amazing. Sadly, there isn’t enough in the game at the moment, so there are some silent moments. A little bit more ambient tracks would go a really long way in this game.

But, I saved one of my biggest things for last. That is inventory management. This is a total pain in bases. Since pals can put things inside chests, you can forget organisation. Thankfully, while crafting, the game pulls from all resources in your base, but if you need a certain item to use at another base, have fun to go searching through all your chests. What I usually do, if I can, is start crafting an item with the one I want to move and then cancel it. Since it drops the resources then and there. Now, how to solve this without breaking the game and the idea that pals can put things in chests? What if you have a new skill that pals can have? An organisation skill and depending on the level, they either put red things with red things or make a weapons chest and come to complain to you when there aren’t enough chests for their organisation?

If your base is fully set up, the proper of a lack of depth starts to show as well. When you build your base, why should you return to it besides needing to craft or repair your weapons? Give us some activities we can do in our base when we build them. I mean come on, we even have the amusement furniture set. If only we could play some mini-games with our pals to increase their sanity for example? Since currently, there is not a lot you can do when a pal is stressed.

Of course, a certain balance needs to be maintained. The more things a pal can interact with, the more chance you have to create lag or overwhelm the player. Also, the more depth you create, the more things you have to maintain and maybe that’s not the type of game that PocketPair wants to create. How I currently see Palworld is a playground sandbox in the schoolyard. It’s an amazing playground where you can make your own fun but it’s only part of the schoolyard and only has a swing, some monkey bars, a climb rack, a small castle and a slide. It’s all solid built and amazing to spend your time in… But, then you notice the potential this sandbox has to grow. What if we enlarged that sandbox with another castle, so the multiplayer can be player vs player as well? Or wait, why don’t we add an underground to that sandbox?

All I’m saying is that currently Palworld has an amazing foundation. The biggest issue at the moment is that the game lacks depth. While the current roadmap has a lot of expansions and more content, I hope PocketPair doesn’t forget to also make it more than just surface level. For example, imagne that the raid bosses can be captured and barely have an unique skills. Why should the player do the raids then? What reward do you get out of it? Not all mechanics can be fun because they are enjoyable to do. Players will get bored and they will look for a way to spice things up or to challenge themselves.

Now what that said, I’m going to close off this article. I’m quite excited for the future of Palworld and I’m going to wait a few more updates before I decide to write a review on the game. But overall, I’m really liking what I see. The basis of an amazing title is here already and I think we are going to get an even better game when this comes out of early access. Let’s wait and see what happens when the first big updates drop. Especially the raid bosses that got teased a few weeks ago.

Thank you so much for reading this article and I hope you enjoyed reading it as much as I enjoyed writing it. What do you think of PalWorld and what should be added or changed? Let me know in the comment section down below. Also, what do you think of my idea’s? I’m curious, feel free to leave a comment about that one to. But, I also hope to welcome you in another article but until then, have a great rest of your day and take care.

One of the arguments sometimes made in defense of copyright is that without it, creators would be unable to compete with the hordes of copycats that would spring up as soon as their works became popular. Copyright is needed, supporters say, to prevent less innovative creators from producing works that are closely based on new, successful ideas.

However, this approach has led to constant arguments and court cases over how close a “closely based” work can be before it infringes on the copyright of others. A good example of this is the 2022 lawsuit involving Ed Sheeran, where is was argued that using just four notes of a scale constituted copyright infringement of someone else’s song employing the same tiny motif. A fascinating new paper looks at things from a different angle. It draws on the idea of “first-mover advantage”, the fact that:

individuals that move to a new market niche early on (“first movers”) obtain advantages that may lead to larger success, compared to those who move to this niche later. First movers enjoy a temporary near-monopoly: since they enter a niche early, they have little to no competition, and so they can charge larger prices and spend more time building a loyal customer base.

The paper explores the idea in detail for the world of music. Here, first-mover advantage means:

The artists and music producers who recognize the hidden potential of a new artistic technique, genre, or style, have bigger chances of reaching success. Having an artistic innovation that your competitors do not have or cannot quickly acquire may become advantageous on the winner-take-all artistic market.

Analyzing nearly 700,000 songs across 110 different musical genres, the researchers found evidence that first-mover advantage was present in 91 of the genres. The authors point out that there is also anecdotal evidence of first-mover advantage in other arts:

For example, Agatha Christie—one of the recognized founders of “classical” detective novel—is also one of the best-selling authors ever. Similarly, William Gibson’s novel Neuromancer—a canonical work in the genre of cyberpunk—is also one of the earliest books in this strand of science fiction. In films, the cult classic The Blair Witch Project is the first recognized member of the highly successful genre of found-footage horror fiction.

Although copyright may be present, first-mover advantage does not require it to operate – it is simply a function of being early with a new idea, which means that competition is scarce or non-existent. If further research confirms the wider presence of first-mover advantage in the creative world – for example, even where sharing-friendly CC licenses are used – it will knock down yet another flimsy defense of copyright’s flawed and outdated intellectual monopoly.

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

The idea/expression dichotomy strikes again! There is a misconception among some as to how copyright works, specifically in terms of what is protected under copyright and what is not. This has been distilled down to the afore-mentioned dichotomy, where general ideas do not enjoy the protection of copyright, whereas specific expressions do. So, an anthropomorphic mouse-hero that wears a cape and can fly is an idea that is not protectable, while the specific depiction of Mighty Mouse (just to age myself) is protectable.

I don’t expect every member of the public, nor even every content creator out there to know this sort of thing. I do, however, expect the lawyers they contact in an attempt to file loser lawsuits to know it. Sadly, these suits make their way into the courts far too often and are nearly as often dismissed on summary judgement. Such seems to be the case with Daniel Kassel’s lawsuit against Comedy Central over two works that feature a talking manatee that has life problems and a human girlfriend.

The work at the center of the lawsuit is Happily Everglades After, a storyboard animatic posted to YouTube by author Daniel Kassel. The work, originally titled Jukebox Manatee, tells the story a manatee protagonist with a laid-back attitude and a human girlfriend who, in the words of the complaint “suffers misfortunes as a commentary on life and its travails with irony and black humor.” The author finalized the work, after “brainstorming” with fellow students in the Pratt Institute, in 2018.

But the author did not take a laid-back approach to the release of Loafy, a one-season adult animated comedy premiering on the Comedy Central digital platforms in August 2020. The show, created by former Saturday Night Live cast member Bobby Moynihan and made by production company Cartuna, is (according to its publicity materials) “a semi-improvised animated series about a weed-dealing manatee who spends his days getting high and lazing around his tank at the Central Park Zoo.” Kevin Smith, Jason Mewes, Gina Gershon, and Tom Green, among others, provide voiceovers for the series.

As the court noted in its ruling in favor of the defense on summary judgement, some of those specific elements and many, many more are at the heart of why this failed as a matter of copyright infringement. I imagine that part of the reason this action was brought in the first place is that a couple of people that worked on Loafy at Cartuna were classmates of Kassel earlier in life. Perhaps he thought that created some link or served as further evidence of infringement. Comedy Central didn’t even bother suggesting that it or the production company never had access to Kassel’s work, in fact.

But as the court went on to say, and I paraphrase: so fucking what? The characters in Kassel’s complaint are not described in protectable elements, the court ruled. A talking manatee with a human girlfriend that talks about his life? That’s an idea, not a specific expression. Hell, Kassel’s work is a four minute cartoon short, whereas Loafy is an episodic series. They’re substantially different in terms of length, themes, and specific expression in a number of ways, up to and including the very nature and length of each work.

And even if the author’s manatee character were unique enough to be protectable, the court found, the “total concept and feel of the two works” was not substantially similar in any event. The original animated short was a four-minute work drawn in stop-motion animation, set in the Everglades, featuring a manatee character who “appears optimistic despite being run over and physically scarred by humans in a boat.” The Comedy Central work was an eight-part animated series, set in a dilapidated zoo near Central Park, featuring “a foul-mouthed and crude drug dealer” whose humor was “designed to leave the viewer laughing.” These and other differences in concept and feel made the author’s claim implausible even on the pleadings.

Kassel brought two other claims, one for unfair competition and another for deceptive acts and practices. The court hand-waved away both. The unfair competition claim failed because it was, again, about ideas and concepts, rather than a specific “tangible good.” The deceptive practices claim failed as well, basically because it essentially reiterated the claim of copyright infringement.

And so this lawsuit goes in the waste bin, wasting the time of everyone involved and, presumably, some money that Kassel would have spent on his lawyers. Lawyers who really should either be giving their client better advice on claims like this, or refusing to take such loser cases on.

A Mortal Kombat YouTuber and modder is accusing Warner Bros of "threatening to destroy" his YouTube channel.

In a lengthy statement on social media platform X, ToastedShoes - an Australian YouTuber with 800K subscribers and 1.7m followers on TikTok - claims he has received an "Intellectual Property Infringement Notification" directly from Warner Bros which asks him to delete "all Mortal Kombat 1 videos from [his] channel or else".

"This morning I received an IP infringement notification directly from Warner Brothers stating that the Mortal Kombat mods in my content 'infringe' on their intellectual property rights," Toasted said. "I've been requested to delete all Mortal Kombat 1 videos from my channel or else they will issue copyright strikes and essentially delete my channel in its entirety.

Read more

In response to a number of copyright lawsuits about AI training datasets, we are starting to see efforts to build ‘non-infringing’ collections of media for training AI. While I continue to believe that most AI training is covered by fair use in the US and therefore inherently ‘non-infringing’, I think these efforts to build ‘safe’ or ‘clean’ or whatever other word one might use data sets are quite interesting. One reason they are interesting is that they can help illustrate why trying to build such a data set at scale is such a challenge.

That’s why I was excited to read about Source.Plus (via a post from Open Future). Source.Plus is a tool from Spawning that purports to aggregate over 37 million “public domain and CC0 images integrated from dozens of libraries and museums.” That’s a lot less than are used to train current generative models, but still a lot of images that could be used for all sorts of useful things.

However, it didn’t take too much poking around on the site to find an illustration of why accurately aggregating nominally openly licensed images at scale can be such a challenge.

The site has plenty of OpenGLAM images that are clearly old enough to be in the public domain. It also has a number of newer images (like photographs) that are said to be licensed under CC0. Curious, I clicked on the first photograph I found on the Source.Plus home page:

According to the image page on Source.Plus, the image was from Wikimedia Commons and licensed under a CC0 public domain dedication. It listed the creator as Pixabay and the uploader (to Wikimedia) as Philipslearning.

Clicking through to the wikimedia page reveals that the original source for the image was Pixabay, and that it was uploaded on March 9, 2023 by Philipslearning (an account that appears to no longer exist, for whatever that is worth). The file metadata says that the image itself was taken on May 18, 2016.

Clicking through to the Pixabay page for the image reveals that the image is available under the Pixabay Content License. That license is fairly permissive, but does state:

• You cannot sell or distribute Content (either in digital or physical form) on a Standalone basis. Standalone means where no creative effort has been applied to the Content and it remains in substantially the same form as it exists on our website.
• If Content contains any recognisable trademarks, logos or brands, you cannot use that Content for commercial purposes in relation to goods and services. In particular, you cannot print that Content on merchandise or other physical products for sale.
• You cannot use Content in any immoral or illegal way, especially Content which features recognisable people.
• You cannot use Content in a misleading or deceptive way.
• You cannot use any of the Content as part of a trade-mark, design-mark, trade-name, business name or service mark.

Which is to say, not CC0.

However, further investigation into the Pixabay Wikipedia page suggests that images uploaded to Pixabay before January 9, 2019 are actually released under CC0. Section 4 of the Pixabay terms confirms that. The additional information on the image’s Pixabay page confirms that it was uploaded on May 17, 2016 (which matches the metadata added by the unknown Philipslearning on the image’s wikimedia page).

All of which means that this image is, in all likelihood, available under a CC0 public domain dedication. Which is great! Everything was right!

At the same time, the accuracy of that status feels a bit fragile. This fragility works in the context of wikipedia, or if you are looking for a handful of openly-licensed images. Is it likely to hold up at training set scale across tens of millions of images? Maybe? What does it mean to be ‘good enough’ in this case? If trainers do require permission from rightsholders to train, and one relied on Source.Plus/wikimedia for the CC0 status of a work, and that status turned out to be incorrect, should the fact that they thought they were using a CC0 image be relevant to their liability?

Michael Weingberg is the Executive Director of NYU’s Engelberg Center for Innovation Law and Policy. This post is republished from his blog under its CC BY-SA 4.0 license. Hero Image: Interieur van de Bodleian Library te Oxford

Two years ago, I wrote about Jeff Dieschburg, an artist in Luxembourg who took work by others, made trivial edits, and won awards with paintings of the results. Sued there by U.S. photographer Jingna Zhang, he won an early verdict in his favour, but has now lost on appeal. — Read the rest

The post Photographer wins lawsuit against alleged painter who plagiarized her work appeared first on Boing Boing.

There’s a fascinating new lawsuit against Meta that includes a surprisingly novel interpretation of Section 230. If the court buys it, this interpretation could make the open web a lot more open, while chipping away at the centralized control of the biggest tech companies. And, yes, that could mean that the law (Section 230) that is wrongly called “a gift to big tech” might be a tool that undermines the dominance of some of those companies. But the lawsuit could be tripped up for any number of reasons, including a potentially consequential typo in the law that has been ignored for years.

Buckle in, this is a bit of a wild ride.

You would think with how much attention has been paid to Section 230 over the last few years (there’s an entire excellent book about it!), and how short the law is, that there would be little happening with the existing law that would take me by surprise. But the new Zuckerman v. Meta case filed on behalf of Ethan Zuckerman by the Knight First Amendment Institute has got my attention.

It’s presenting a fairly novel argument about a part of Section 230 that almost never comes up in lawsuits, but could create an interesting opportunity to enable all kinds of adversarial interoperability and middleware to do interesting (and hopefully useful) things that the big platforms have been using legal threats to shut down.

If the argument works, it may reveal a surprising and fascinating trojan horse for a more open internet, hidden in Section 230 for the past 28 years without anyone noticing.

Of course, it could also have much wider ramifications that a bunch of folks need to start thinking through. This is the kind of thing that happens when someone discovers something new in a law that no one really noticed before.

But there’s also a very good chance this lawsuit flops for a variety of other reasons without ever really exploring the nature of this possible trojan horse. There are a wide variety of possible outcomes here.

But first, some background.

For years, we’ve talked about the importance of tools and systems that give end users more control over their own experiences online, rather than leaving it entirely up to the centralized website owners. This has come up in a variety of different contexts in different ways, from “Protocols, not Platforms” to “adversarial interoperability,” to “magic APIs” to “middleware.” These are not all exactly the same thing, but they’re all directionally strongly related, and conceivably could work well together in interesting ways.

But there are always questions about how to get there, and what might stand in the way. One of the biggest things standing in the way over the last decade or so has been interpretations of various laws that effectively allow social media companies to threaten and/or bring lawsuits against companies trying to provide these kinds of additional services. This can take the form of a DMCA 1201 claim for “circumventing” a technological block. Or, more commonly, it has taken the form of a civil (Computer Fraud & Abuse Act) CFAA claim.

The most representative example of where this goes wrong is when Facebook sued Power Ventures years ago. Power was trying to build a unified dashboard across multiple social media properties. Users could provide Power with their own logins to social media sites. This would allow Power to log in to retrieve and post data, so that someone could interact with their Facebook community without having to personally go into Facebook.

This was a potentially powerful tool in limiting Facebook’s ability to become a walled-off garden with too much power. And Facebook realized that too. That’s why it sued Power, claiming that it violated the CFAA’s prohibition on “unauthorized access.”

The CFAA was designed (poorly and vaguely) as an “anti-hacking” law. And you can see where “unauthorized access” could happen as a result of hacking. But Facebook (and others) have claimed that “unauthorized access” can also be “because we don’t want you to do that with your own login.”

And the courts have agreed to Facebook’s interpretation, with a few limitations (that don’t make that big of a difference).

I still believe that this ability to block interoperability/middleware with law has been a major (perhaps the most major) reason “big tech” is so big. They’re able to use these laws to block out the kinds of companies who would make the market more competitive and pull down some the walls of walled gardens.

That brings us to this lawsuit.

Ethan Zuckerman has spent years trying to make the internet a better, more open space (partially, I think, in penance for creating the world’s first pop-up internet ad). He’s been doing some amazing work on reimagining the digital public infrastructure, which I keep meaning to write about, but never quite find the time to get to.

According to the lawsuit, he wants to build a tool called “Unfollow Everything 2.0.” The tool is based on a similar tool, also called Unfollow Everything, that was built by Louis Barclay a few years ago and did what it says on the tin: let you automatically unfollow everything on Facebook. Facebook sent Barclay a legal threat letter and banned him for life from the site.

Zuckerman wants to recreate the tool with some added features enabling users to opt-in to provide some data to researchers about the impact of not following anyone on social media. But he’s concerned that he’d face legal threats from Meta, given what happened with Barclay.

Using Unfollow Everything 2.0, Professor Zuckerman plans to conduct an academic research study of how turning off the newsfeed affects users’ Facebook experience. The study is opt-in—users may use the tool without participating in the study. Those who choose to participate will donate limited and anonymized data about their Facebook usage. The purpose of the study is to generate insights into the impact of the newsfeed on user behavior and well-being: for example, how does accessing Facebook without the newsfeed change users’ experience? Do users experience Facebook as less “addictive”? Do they spend less time on the platform? Do they encounter a greater variety of other users on the platform? Answering these questions will help Professor Zuckerman, his team, and the public better understand user behavior online and the influence that platform design has on that behavior

The tool and study are nearly ready to launch. But Professor Zuckerman has not launched them because of the near certainty that Meta will pursue legal action against him for doing so.

So he’s suing for declaratory judgment that he’s not violating any laws. If he were just suing for declaratory judgment over the CFAA, that would (maybe?) be somewhat understandable or conventional. But, while that argument is in the lawsuit, the main claim in the case is something very, very different. It’s using a part of Section 230, section (c)(2)(B), that almost never gets mentioned, let alone tested.

Most Section 230 lawsuits involve (c)(1): the famed “26 words” that state “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Some Section 230 cases involve (c)(2)(A) which states that “No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Many people incorrectly think that Section 230 cases turn on this part of the law, when really, much of those cases are already cut off by (c)(1) because they try to treat a service as a speaker or publisher.

But then there’s (c)(2)(B), which says:

No provider or user of an interactive computer service shall be held liable on account of any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)

As noted, this basically never comes up in cases. But the argument being made here is that this creates some sort of proactive immunity from lawsuits for middleware creators who are building tools (“technical means”) to “restrict access.” In short: does Section 230 protect “Unfollow Everything” from basically any legal threats from Meta, because it’s building a tool to restrict access to content on Meta platforms?

Or, according to the lawsuit:

This provision would immunize Professor Zuckerman from civil liability for designing, releasing, and operating Unfollow Everything 2.0

First, in operating Unfollow Everything 2.0, Professor Zuckerman would qualify as a “provider . . . of an interactive computer service.” The CDA defines the term “interactive computer service” to include, among other things, an “access software provider that provides or enables computer access by multiple users to a computer server,” id. § 230(f)(2), and it defines the term “access software provider” to include providers of software and tools used to “filter, screen, allow, or disallow content.” Professor Zuckerman would qualify as an “access software provider” because Unfollow Everything 2.0 enables the filtering of Facebook content—namely, posts that would otherwise appear in the feed on a user’s homepage. And he would “provide[] or enable[] computer access by multiple users to a computer server” by allowing users who download Unfollow Everything 2.0 to automatically unfollow and re-follow friends, groups, and pages; by allowing users who opt into the research study to voluntarily donate certain data for research purposes; and by offering online updates to the tool.

Second, Unfollow Everything 2.0 would enable Facebook users who download it to restrict access to material they (and Zuckerman) find “objectionable.” Id. § 230(c)(2)(A). The purpose of the tool is to allow users who find the newsfeed objectionable, or who find the specific sequencing of posts within their newsfeed objectionable, to effectively turn off the feed.

I’ve been talking to a pretty long list of lawyers about this and I’m somewhat amazed at how this seems to have taken everyone by surprise. Normally, when new lawsuits come out, I’ll gut check my take on it with a few lawyers and they’ll all agree with each other whether I’m heading in the right direction or the totally wrong direction. But here… the reactions were all over the map, and not in any discernible pattern. More than one person I spoke to started by suggesting that this was a totally crazy legal theory, only to later come back and say “well, maybe it actually makes some sense.”

It could be a trojan horse that no one noticed in Section 230 that effectively bars websites from taking legal action against middleware providers who are providing technical means for people to filter or screen content on their feed. Now, it’s important to note that it does not bar those companies from putting in place technical measures to block such tools, or just banning accounts or whatever. But that’s very different from threatening or filing civil suits.

If this theory works, it could do a lot to enable these kinds of middleware services and make it significantly harder for big social media companies like Meta to stop them. If you believe in adversarial interoperability, that could be a very big deal. Like, “shift the future of the internet we all use” kind of big.

Now, there are many hurdles before we get to that point. And there are some concerns that if this legal theory succeeds, it could also lead to other problematic results (though I’m less convinced by those).

Let’s start with the legal concerns.

First, as noted, this is a very novel and untested legal theory. Upon reading the case initially, my first reaction was that it felt like one of those slightly wacky academic law journal articles you see law professors write sometimes, with some far-out theory they have that no one’s ever really thought about. This one is in the form of a lawsuit, so at some point we’ll find out how the theory works.

But that alone might make a judge unwilling to go down this path.

Then there are some more practical concerns. Is there even standing here? ¯\_(ツ)_/¯ Zuckerman hasn’t released his tool. Meta hasn’t threatened him. He makes a credible claim that given Meta’s past actions, they’re likely to react unfavorably, but is that enough to get standing?

Then there’s the question of whether or not you can even make use of 230 in an affirmative way like this. 230 is used as a defense to get cases thrown out, not proactively for declaratory judgment.

Also, this is not my area of expertise by any stretch of the imagination, but I remember hearing in the past that outside of IP law, courts (and especially courts in the 9th Circuit) absolutely disfavor lawsuits for declaratory judgment (i.e., a lawsuit before there’s any controversy, where you ask the court “hey, can you just check and make sure I’m on the right side of the law here…”). So I could totally see the judge saying “sorry, this is not a proper use of our time” and tossing it. In fact, that might be the most likely result.

Then there’s this kinda funny but possibly consequential issue: there’s a typo in Section 230 that almost everyone has ignored for years. Because it’s never really mattered. Except it matters in this case. Jeff Kosseff, the author of the book on Section 230, always likes to highlight that in (c)(2)(B), it says that the immunity is for using “the technical means to restrict access to material described in paragraph (1).”

But they don’t mean “paragraph (1).” They mean “paragraph (A).” Paragraph (1) is the “26 words” and does not describe any material, so it would make no sense to say “material described in paragraph (1).” It almost certainly means “paragraph (A),” which is the “good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” section. That’s the one that describes material.

I know that, at times, Jeff has joked when people ask him how 230 should be reformed he suggests they fix the typo. But Congress has never listened.

And now it might matter?

The lawsuit basically pretends that the typo isn’t there. Its language inserts the language from “paragraph (A)” where the law says “paragraph (1).”

I don’t know how that gets handled. Perhaps it gets ignored like every time Jeff points out the typo? Perhaps it becomes consequential? Who knows!

There are a few other oddities here, but this article is getting long enough and has mostly covered the important points. However, I will conclude on one other point that one of the people I spoke to raised. As discussed above, Meta has spent most of the past dozen or so years going legally ballistic about anyone trying to scrape or data mine its properties in anyway.

Yet, earlier this year, it somewhat surprisingly bailed out on a case where it had sued Bright Data for scraping/data mining. Lawyer Kieran McCarthy (who follows data scraping lawsuits like no one else) speculated that Meta’s surprising about-face may be because it suddenly realized that for all of its AI efforts, it’s been scraping everyone else. And maybe someone high up at Meta suddenly realized how it was going to look in court when it got sued for all the AI training scraping, if the plaintiffs point out that at the very same time it was suing others for scraping its properties.

For me, I suspect the decision not to appeal might be more about a shift in philosophy by Meta and perhaps some of the other big platforms than it is about their confidence in their ability to win this case. Today, perhaps more important to Meta than keeping others off their public data is having access to everyone else’s public data. Meta is concerned that their perceived hypocrisy on these issues might just work against them. Just last month, Meta had its success in prior scraping cases thrown back in their face in a trespass to chattels case. Perhaps they were worried here that success on appeal might do them more harm than good.

In short, I think Meta cares more about access to large volumes of data and AI than it does about outsiders scraping their public data now. My hunch is that they know that any success in anti-scraping cases can be thrown back at them in their own attempts to build AI training databases and LLMs. And they care more about the latter than the former.

I’ve separately spoken to a few experts who were worried about the consequences if Zuckerman succeeded here. They were worried that it might simultaneously immunize potential bad actors. Specifically, you could see a kind of Cambridge Analytica or Clearview AI situation, where companies trying to get access to data for malign purposes convince people to install their middleware app. This could lead to a massive expropriation of data, and possibly some very sketchy services as a result.

But I’m less worried about that, mainly because it’s the sketchy eventuality of how that data is being used that would still (hopefully?) violate certain laws, not the access to the data itself. Still, there are at least some questions being raised about how this type of more proactive immunity might result in immunizing bad actors that is at least worth thinking about.

Either way, this is going to be a case worth following.

Take-Two has successfully defended itself against a lawsuit in which a tattoo artist claimed the publisher had used their copyright without permission when recreating the likeness of Lebron James' tattoo in NBA 2K.

Yesterday, Friday 19th April, a jury in Ohio returned the verdict that Take-Two had not infringed on tattoo artist Jimmy Hayden's copyright after Take-Two's lawyers convinced the jury that – as it had secured permission to use James' likeness – that included the basketball star's tattoos, too.

As reported by Reuters (thanks, VGC), Take-Two's attorney Dale Cendali claimed the case was a victory for "anyone who has ever gotten a tattoo and might have otherwise worried about their freedom to share their bodies with their tattoos".

Read more

We’ve had plenty of posts discussing all manner of behavior from the Los Angeles Police Dept. and/or the LAPD union here at Techdirt. As you might imagine if you’re a regular reader here, the majority of those posts haven’t exactly involved fawning praise for these supposed crimefighters. In fact, if you went on a reading blitz of those posts, you might even come away thinking, “You know what? Fuck the LAPD!”

Well, if you wanted to display your sentiments while you went about your day, you might go over to the Cola Corporation’s website to buy one particular shirt it had on offer there before they completely sold out.

Now, it’s not uncommon for misguided entities to issue intellectual property threat letters over t-shirts and apparel, even when it is of the sort that is obviously fair use. Given that, you might have thought it would be the Los Angeles Lakers that sent a nastygram to Cola Corp. After all, the logo in question is clearly a parody of the LA Lakers logo.

Nope!

It was the Los Angeles Police Foundation via its IMG representatives. The LAPF is something of a shadow financier of the LAPD for equipment, including all manner of tech and gear. We have no idea how an entertainment agency like IMG got in bed with these assbags, but it was IMG sending the threat letter you can see below, chock full of all kinds of claims to rights that the LAPF absolutely does not and could not have.

If you can’t see that, it’s a letter sent by Andrew Schmidt, who represents himself as the Senior Counsel to IMG Worldwide, saying:

RE: Request to Remove Infringing Material From www.thecolacorporation.com
Dear Sir/Madam:

I am writing on behalf of IMG Worldwide, LLC (“IMG”), IMG is the authorized representative of Los Angeles Police Foundation CLAPF) LAPF is one of two exclusive holders of intellectual property rights pertaining to trademarks, copyrights and other licensed indicia for (a) the Los Angeles Police Department Badge; (b) the Los Angeles Police Department Uniform; (c) the LAPD motto “To Protect and Serve”; and (d) the word “LAPD” as an acronym/abbreviation for the Los Angeles Police Department (collectively, the “LAPD IP”). Through extensive advertising, promotion and the substantial sale of a full range of licensed products embodying and pertaining to the LAPD IP, the LAPD IP has become famous throughout the world; and as such, carries immeasurable value to LAPF.

We are writing to you regarding an unauthorized use of the LAPD IP on products being sold on your website, www.thecolacorporation.com (the “Infringing Product”). The website URL and description for the Infringing Product is as follows:
https://www.thecolacorporation.com/products fack-the- lupd pos-1&sid=435934961&&variant=48461787234611 FUCK THE LAPD
For the avoidance of doubt, the aforementioned Infringing Product and the image associated therewith are in no way authorized or approved by LAPF or any of its duly authorized representatives.

This letter hereby serves as a statement that:

1. The aforementioned Infringing Product and the image associated therewith violate LAPF’s rights in the LAPD IP
2. These exclusive rights in and to the LAPD IP are being violated by the sale of the Infringing Product on your website at the URL mentioned above;
3. [Contact info omitted]
4. On information and belief, the use of the LAPD IP on the Infringing Products is not authorized by LAPF, LAPF’s authorized agents or representatives or the law.
5. Under penalty of perjury, I hereby state that the above information is accurate and I am duly authorized to act on on behalf of the rights holder of the intellectual. property at issue I hereby request that you remove or disable access the above-mentioned materials and their corresponding URL’s as they appear on your services in as expedient a manner as possible.
   

So, where to begin? For starters, note how the letter breezily asserts copyright, trademark, and “other licensed indicia” without ever going into detail as to what it thinks it actually holds the rights to? That’s an “indicia” of a legal threat that is bloviating, with nothing to back it up. If you know what rights you have, you clearly state them. This letter does not.

If it’s a copyright play that the LAPF is trying to make, it’s going to go absolutely nowhere. The use is made for the purposes of parody and political commentary. It’s clearly fair use, and there are plenty of precedents to back that up. Second, what exactly is the copyright claim here? It’s not the logo. Again, if anything, that would be the Lakers’ claim to make. The only thing possibly related to the LAPD would be those letters: LAPD. And, no, the LAPD does not get to copyright the letters LAPD.

If it’s a trademark play instead, well, that might actually work even less for the LAPF, for any number of reasons. Again, this is parody and political commentary: both First Amendment rights that trump trademarks. More importantly, in trademark you have the question of the likelihood of confusion. We’re fairly sure the LAPF doesn’t want to make the case that the public would be confused into thinking that the Los Angeles Police Foundation was an organization that is putting out a “Fuck the LAPD” t-shirt. Finally, for there to be a trademark, there has to be a use in commerce. Is the LAPF selling “Fuck the LAPD” t-shirts? Doubtful.

But that’s all sort of besides the point, because the LAPF doesn’t have the rights IMG asserted in its letter. Again, the only possible claim that the LAPF can make here is that it has ownership to the letters LAPD. And it does not. Beyond the fact that it had no “creative” input into LAPD, the LAPD is a city’s law enforcement agency and you cannot copyright or trademark such a thing. And, as we’ve discussed multiple times in the past, government agencies don’t get to claim IP on their agency names. The only restrictions they can present are on deceptive uses of logos/seals/etc.

But that is clearly not the case here. And we already have some examples from a decade ago of government agencies demanding the removal of parody logos and… it not ending very well for the government. 

So, what is actually happening here is that the LAPF/LAPD (via IMG) is pretending it has the right to screw with private citizens in ways it absolutely does not, and is using those false rights to harass those private persons with threatening behavior to intimidate them into doing what the LAPF wants. Which, if I’m being totally honest here, is certainly on brand as roughly the most police-y thing it could do in response to a simple t-shirt that is no longer even for sale.

Now, you might imagine that the Cola Corporation’s own legal team would reply to the silly threat letter outlining all of the above, crafting a careful and articulate narrative responding to all the points raised by the LAPF, and ensuring that their full legal skills were on display.

Instead, the company brought on former Techdirt podcast guest, lawyer Mike Dunford, who crafted something that is ultimately even better.

If you can’t read that, you’re not missing much. It says:

Andrew,

Lol, no.

Sincerely,
Mike Dunford

Perfect. No notes. May it go down in history alongside Arkell v. Pressdam, or the infamous Cleveland Browns response to a fan complaining about paper airplanes, as the perfect way to respond to absolutely ridiculous legal threat letters.

For what it’s worth, Dunford’s boss, Akiva Cohen, noted that this letter was “a fun one to edit.” We can only imagine.

This was a fun one to edit

[image or embed]

— AkivaMCohen (@akivamcohen.bsky.social) Apr 18, 2024 at 2:47 PM

Take-Two has successfully defended itself against a lawsuit in which a tattoo artist claimed the publisher had used their copyright without permission when recreating the likeness of Lebron James' tattoo in NBA 2K.

Yesterday, Friday 19th April, a jury in Ohio returned the verdict that Take-Two had not infringed on tattoo artist Jimmy Hayden's copyright after Take-Two's lawyers convinced the jury that – as it had secured permission to use James' likeness – that included the basketball star's tattoos, too.

As reported by Reuters (thanks, VGC), Take-Two's attorney Dale Cendali claimed the case was a victory for "anyone who has ever gotten a tattoo and might have otherwise worried about their freedom to share their bodies with their tattoos".

Read more

We’ve had plenty of posts discussing all manner of behavior from the Los Angeles Police Dept. and/or the LAPD union here at Techdirt. As you might imagine if you’re a regular reader here, the majority of those posts haven’t exactly involved fawning praise for these supposed crimefighters. In fact, if you went on a reading blitz of those posts, you might even come away thinking, “You know what? Fuck the LAPD!”

Well, if you wanted to display your sentiments while you went about your day, you might go over to the Cola Corporation’s website to buy one particular shirt it had on offer there before they completely sold out.

Now, it’s not uncommon for misguided entities to issue intellectual property threat letters over t-shirts and apparel, even when it is of the sort that is obviously fair use. Given that, you might have thought it would be the Los Angeles Lakers that sent a nastygram to Cola Corp. After all, the logo in question is clearly a parody of the LA Lakers logo.

Nope!

It was the Los Angeles Police Foundation via its IMG representatives. The LAPF is something of a shadow financier of the LAPD for equipment, including all manner of tech and gear. We have no idea how an entertainment agency like IMG got in bed with these assbags, but it was IMG sending the threat letter you can see below, chock full of all kinds of claims to rights that the LAPF absolutely does not and could not have.

If you can’t see that, it’s a letter sent by Andrew Schmidt, who represents himself as the Senior Counsel to IMG Worldwide, saying:

RE: Request to Remove Infringing Material From www.thecolacorporation.com
Dear Sir/Madam:

I am writing on behalf of IMG Worldwide, LLC (“IMG”), IMG is the authorized representative of Los Angeles Police Foundation CLAPF) LAPF is one of two exclusive holders of intellectual property rights pertaining to trademarks, copyrights and other licensed indicia for (a) the Los Angeles Police Department Badge; (b) the Los Angeles Police Department Uniform; (c) the LAPD motto “To Protect and Serve”; and (d) the word “LAPD” as an acronym/abbreviation for the Los Angeles Police Department (collectively, the “LAPD IP”). Through extensive advertising, promotion and the substantial sale of a full range of licensed products embodying and pertaining to the LAPD IP, the LAPD IP has become famous throughout the world; and as such, carries immeasurable value to LAPF.

We are writing to you regarding an unauthorized use of the LAPD IP on products being sold on your website, www.thecolacorporation.com (the “Infringing Product”). The website URL and description for the Infringing Product is as follows:
https://www.thecolacorporation.com/products fack-the- lupd pos-1&sid=435934961&&variant=48461787234611 FUCK THE LAPD
For the avoidance of doubt, the aforementioned Infringing Product and the image associated therewith are in no way authorized or approved by LAPF or any of its duly authorized representatives.

This letter hereby serves as a statement that:

1. The aforementioned Infringing Product and the image associated therewith violate LAPF’s rights in the LAPD IP
2. These exclusive rights in and to the LAPD IP are being violated by the sale of the Infringing Product on your website at the URL mentioned above;
3. [Contact info omitted]
4. On information and belief, the use of the LAPD IP on the Infringing Products is not authorized by LAPF, LAPF’s authorized agents or representatives or the law.
5. Under penalty of perjury, I hereby state that the above information is accurate and I am duly authorized to act on on behalf of the rights holder of the intellectual. property at issue I hereby request that you remove or disable access the above-mentioned materials and their corresponding URL’s as they appear on your services in as expedient a manner as possible.
   

So, where to begin? For starters, note how the letter breezily asserts copyright, trademark, and “other licensed indicia” without ever going into detail as to what it thinks it actually holds the rights to? That’s an “indicia” of a legal threat that is bloviating, with nothing to back it up. If you know what rights you have, you clearly state them. This letter does not.

If it’s a copyright play that the LAPF is trying to make, it’s going to go absolutely nowhere. The use is made for the purposes of parody and political commentary. It’s clearly fair use, and there are plenty of precedents to back that up. Second, what exactly is the copyright claim here? It’s not the logo. Again, if anything, that would be the Lakers’ claim to make. The only thing possibly related to the LAPD would be those letters: LAPD. And, no, the LAPD does not get to copyright the letters LAPD.

If it’s a trademark play instead, well, that might actually work even less for the LAPF, for any number of reasons. Again, this is parody and political commentary: both First Amendment rights that trump trademarks. More importantly, in trademark you have the question of the likelihood of confusion. We’re fairly sure the LAPF doesn’t want to make the case that the public would be confused into thinking that the Los Angeles Police Foundation was an organization that is putting out a “Fuck the LAPD” t-shirt. Finally, for there to be a trademark, there has to be a use in commerce. Is the LAPF selling “Fuck the LAPD” t-shirts? Doubtful.

But that’s all sort of besides the point, because the LAPF doesn’t have the rights IMG asserted in its letter. Again, the only possible claim that the LAPF can make here is that it has ownership to the letters LAPD. And it does not. Beyond the fact that it had no “creative” input into LAPD, the LAPD is a city’s law enforcement agency and you cannot copyright or trademark such a thing. And, as we’ve discussed multiple times in the past, government agencies don’t get to claim IP on their agency names. The only restrictions they can present are on deceptive uses of logos/seals/etc.

But that is clearly not the case here. And we already have some examples from a decade ago of government agencies demanding the removal of parody logos and… it not ending very well for the government. 

So, what is actually happening here is that the LAPF/LAPD (via IMG) is pretending it has the right to screw with private citizens in ways it absolutely does not, and is using those false rights to harass those private persons with threatening behavior to intimidate them into doing what the LAPF wants. Which, if I’m being totally honest here, is certainly on brand as roughly the most police-y thing it could do in response to a simple t-shirt that is no longer even for sale.

Now, you might imagine that the Cola Corporation’s own legal team would reply to the silly threat letter outlining all of the above, crafting a careful and articulate narrative responding to all the points raised by the LAPF, and ensuring that their full legal skills were on display.

Instead, the company brought on former Techdirt podcast guest, lawyer Mike Dunford, who crafted something that is ultimately even better.

If you can’t read that, you’re not missing much. It says:

Andrew,

Lol, no.

Sincerely,
Mike Dunford

Perfect. No notes. May it go down in history alongside Arkell v. Pressdam, or the infamous Cleveland Browns response to a fan complaining about paper airplanes, as the perfect way to respond to absolutely ridiculous legal threat letters.

For what it’s worth, Dunford’s boss, Akiva Cohen, noted that this letter was “a fun one to edit.” We can only imagine.

This was a fun one to edit

[image or embed]

— AkivaMCohen (@akivamcohen.bsky.social) Apr 18, 2024 at 2:47 PM

Remember Wordle? I sure do and one of the ways I start my days at work is to pull up the site and give it a quick play. But I honestly may just need to stop, given the behavior of the current owners of the game.

For this discussion, you really do need to recall that Wordle began as a free to play, simple daily game that became a quick craze nationally. It was created by one person, Josh Wardle, who made absolutely clear at the time that he had no interest in wrapping anything like intellectual property around the game. And when others did create spinoffs or clones of the game, he handled it in roughly as congenial a manner possible.

But then he sold the game to the New York Times. And the Times promptly began to strongarm these spinoffs and clones into shutting down, wielding IP threats to do so. That was 2 years ago and the craze around Wordle has certainly died down. Has the New York Times’ bullying declined as well?

Absolutely not! The New York Times recently DMCAd several of these sorts of Wordle clones over recent days (which was first reported on by 404 Media).

Two takedown requests were issued in January against unofficial Korean and Bosnian-language versions of the game. Additional requests were filed this week against Wirdle — a variant created by dialect group I Hear Dee in 2022 to promote the Shaetlan language — and Reactle, an open-source Wordle clone built using React, TypeScript, and Tailwind. It was developed prior to the Times’ purchase of the game, according to its developer, Chase Wackerfuss.

The Reactle code has been copied around 1,900 times, according to GitHub, allowing developers to build upon it to create a wide variety of Wordle-inspired games that use different languages, themes, and visual styles, some of which 404 Media says are “substantially different” from Wordle. The DMCA notice against Reactle also targets all of these games forked from the original Reactle code on GitHub, alleging that spinoffs containing the Wordle name have been made in “bad faith” and that “gameplay is copied exactly” in the Reactle repository. Numerous developers commenting on a Hacker News thread also claim to have been targeted with DMCA takedowns.

This is silly. The Times has an advantage over all of these other clones, because it has the first version of the game. When people go to play Wordle, the vast majority of them are going to find themselves on the NYT website. A bunch of hobbyists accessing a clone a thousand times just isn’t going to represent some enormous threat to the Times.

And, hell, Wordle itself is very similar to a game created in the 50’s that was played on paper, as well as a game show called Lingo. And, ultimately, the game is also essentially a vocabulary version of the board game Mastermind.

Meaning what, exactly? Well, meaning that it’s quite rich for the New York Times to go around shutting down similar or derivative games simply because it bought, but did not create, the Wordle IP that its creator never wanted to see wielded in this way. And, in large part, over “gameplay mechanics” that the game essentially lifted from a game show from several decades ago.

Amusingly, Wordle has itself been criticized over striking similarities it shares with Lingo, a 1980s game show that centered on players guessing five-letter words, with a grid that changes color based on accuracy.

Unfortunately these are all small entities that the NYT is bullying here and most if not all of them have declined to fight back so far. Here’s hoping there’s at least one of them out there that wants to step up and push back on these DMCA notices.

Wordle was a runaway hit word-deducing game on the web, so popular that The New York Times bought it outright and moved it to its website. A couple of years in, though, and it's launching a crackdown on clones and games too similar for its lawyers' comfort. — Read the rest

The post New York Times launches copyright crackdown on Wordle clones appeared first on Boing Boing.

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.

Enlarge (credit: Aurich Lawson | Getty Images)

The day after The New York Times sued OpenAI for copyright infringement, the author and systems architect Daniel Jeffries wrote an essay-length tweet arguing that the Times “has a near zero probability of winning” its lawsuit. As we write this, it has been retweeted 288 times and received 885,000 views.

“Trying to get everyone to license training data is not going to work because that's not what copyright is about,” Jeffries wrote. “Copyright law is about preventing people from producing exact copies or near exact copies of content and posting it for commercial gain. Period. Anyone who tells you otherwise is lying or simply does not understand how copyright works.”

This article is written by two authors. One of us is a journalist who has been on the copyright beat for nearly 20 years. The other is a law professor who has taught dozens of courses on IP and Internet law. We’re pretty sure we understand how copyright works. And we’re here to warn the AI community that it needs to take these lawsuits seriously.

Read 67 remaining paragraphs | Comments

Is it a crime to learn something by reading a copyrighted book? What if you later summarize that book to a friend or write a description of it online? Of course, these things are perfectly legal when a person does them. But does that change when it's an artificial intelligence system doing the reading, learning, and summarizing?

Sarah Silverman, comedian and author of the book The Bedwetter, seems to think it does. She and several other authors are suing OpenAI, the tech company behind the popular AI chatbot ChatGPT, through which users submit text prompts and receive back AI-generated answers.

Last week, a federal judge largely rejected their claims.

The ruling is certainly good news for OpenAI and for ChatGPT users. It's also good news for the future of AI technology more broadly. AI tools could be completely hamstrung by the expansive vision of copyright law that Silverman and the other authors in this case envision.

The Authors' Complaints and OpenAI's Response

Teaching AI to communicate and "think" like a human takes a lot of text. To this end, OpenAI used a massive dataset of books to train the language models that power its artificial intelligence. ("It is the volume of text used, more than any particular selection of text, that really matters," OpenAI explained in its motion to dismiss.)

Silverman and the others say this violates federal copyright law.

Authors Paul Tremblay and Mona Awad filed a class-action complaint to this effect against OpenAI last June. Silverman and authors Christopher Golden and Richard Kadrey filed a class-action complaint against OpenAI in July. The threesome also filed a similar lawsuit against Meta. In all three cases, the lead lawyer was antitrust attorney Joseph Saveri.

"As with all too many class action lawyers, the goal is generally enriching the class action lawyers, rather than actually stopping any actual wrong," suggested Techdirt Editor in Chief Mike Masnick when the suits were first filed. "Saveri is not a copyright expert, and the lawsuits…show that. There are a ton of assumptions about how Saveri seems to think copyright law works, which is entirely inconsistent with how it actually works."

In both complaints against OpenAI, Saveri claims that copyrighted works—including books by the authors in this suit—"were copied by OpenAI without consent, without credit, and without compensation."

This is a really weird way to characterize how AI training datasets work. Yes, the AI tools "read" the works in question in order to learn, but they don't need to copy the works in question. It's also a weird understanding of copyright infringement—akin to arguing that someone reading a book in order to learn about a subject for a presentation is infringing on the work or that search engines are infringing when they scan webpages to index them.

The authors in these cases also object to ChatGPT spitting out summaries of their books, among other things. "When ChatGPT was prompted to summarize books written by each of the Plaintiffs, it generated very accurate summaries," states the Silverman et al. complaint.

Again, putting this in any other context shows how silly it is. Are book reviewers infringing on the copyrights of the books they review? Is someone who reads a book and tweets about the plot violating copyright law?

It would be different if ChatGPT reproduced copies of books in their entirety or spit out large, verbatim passages from them. But the activity the authors allege in their complaints is not that.

The copyright claims in this case "misconceive the scope of copyright, failing to take into account the limitations and exceptions (including fair use) that properly leave room for innovations like the large language models now at the forefront of artificial intelligence," OpenAI argued in its motion to dismiss some of the claims.

It suggested that the doctrine of fair use—designed in recognition of the fact "that the use of copyrighted materials by innovators in transformative ways does not violate copyright"—applies in this case and the case of "countless artificial intelligence products [that] have been developed by a wide array of technology companies."

The Court Weighs In

The authors prevailing here could seriously hamper the creation of AI language learning models. Fortunately, the court isn't buying a lot of their arguments. In a February 12 ruling, Judge Araceli Martínez-Olguín of the U.S. District Court for the Northern District of California dismissed most of the authors' claims against OpenAI.

This included the claims that OpenAI engaged in "vicarious copyright infringement," that it violated the Digital Millennium Copyright Act (DMCA), and that it was guilty of negligence and unjust enrichment. The judge also partially rejected a claim of unfair competition under California law while allowing the authors to proceed with that claim in part (largely because California's understanding of "unfair competition" here is so broad).

Silverman and the other authors in these cases "have not alleged that the ChatGPT outputs contain direct copies of the copyrighted books," Martínez-Olguín noted. And they "fail to explain what the outputs entail or allege that any particular output is substantially similar – or similar at all — to their books."

The judge also rejected the idea that OpenAI removed or altered copyright management information (as prohibited by Section 1202(b) of the DMCA). "Plaintiffs provide no facts supporting this assertion," wrote Martínez-Olguín. "Indeed, the Complaints include excerpts of ChatGPT outputs that include multiple references to [the authors'] names."

And if OpenAI didn't violate the DMCA, then other claims based on that alleged violation—like that OpenAI distributed works with copyright management information removed or engaged in unlawful or fraudulent business practices—fail too.

More AI/Copyright Battles To Come

This isn't the end of the authors vs. OpenAI debate. The judge did not yet rule on their direct copyright infringement claim because OpenAI did not seek yet to dismiss it. (The company said it will try to resolve that later in the case.)

The judge also will allow the parties to file an amended complaint if they want to.

Given the lameness of their legal arguments, and the judge's dismissal of some of the claims, "it's difficult to see how any of the cases will survive," writes Masnick. (See his post for a more detailed look at the claims involved here and why a judge dismissed them.)

Unfortunately, we're almost certain to keep seeing people sue AI companies—language models, image generators, etc.—on dubious grounds, because America is in the midst of a growing AI tech panic. And every time a new tech panic takes hold, we see people trying to make money and/or a name for themselves by flinging a bunch of flimsy accusations in lawsuit form. We've seen this with social media companies and Section 230, social media and alleged mental health harms to teens, all sorts of popular tech companies and antitrust law.

Now that artificial intelligence is the darling of tech exuberance and hysteria alike, a lot of folks—from bureaucrats at the Federal Trade Commission to enterprising lawyers to all sorts of traditional media creators and purveyors—are seeking to extract money for themselves from these technologies.

"I understand why media companies don't like people training on their documents, but believe that just as humans are allowed to read documents on the open internet, learn from them, and synthesize brand new ideas, AI should be allowed to do so too," commented Andrew Ng, co-founder of Coursera and an adjunct professor at Stanford. "I would like to see training on the public internet covered under fair use—society will be better off this way—though whether it actually is will ultimately be up to legislators and the courts."

Unlike many people who write about technology, I don't foresee major disruptions, good or bad, coming from AI anytime soon. But there are many smaller benefits and efficiencies that AI can bring us—if we can keep people from hampering its development with a maximalist reading of copyright law.

Today's Image

The post Sarah Silverman's Lawsuit Against OpenAI Is Full of Nonsense Claims appeared first on Reason.com.

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.

Former Rep. George Santos, kicked out of Congress last year for being an irredeemable liar, has spent his time since expulsion pulling in the big bucks making videos on Cameo for anywhere between $350 and $500 a pop.

Last year, Senator John Fetterman made news when he got Santos to record a Cameo video trolling disgraced, indicted colleague Senator Bob Menendez who refuses to resign. That video had Santos urging “Bobby” to “hang in there.” Earlier this month, Santos admitted that he’d surpassed 1,200 videos in the last few months, bringing in a few hundred thousand dollars.

Apparently, a little over a dozen of those came from talk show host Jimmy Kimmel, who started a segment in December called “Will Santos Say It.” Kimmel submitted wacky Cameo requests and played some on the show. Back in December, Santos complained about this — mainly that he wasn’t getting paid enough for the videos.

Over the weekend, Santos actually sued Kimmel, along with ABC/Disney, claiming copyright infringement. Because, I’m sure, Disney doesn’t employ any copyright lawyers who will eat Santos and his lawyer for lunch and spit out the remains into bowls made out of Mickey Mouse.

The lawsuit is not good. The crux is that Kimmel (1) misrepresented himself and (2) purchased videos under a “personal” license instead of a “commercial” one, and therefore this is both fraud and copyright infringement.

It is likely neither.

On the copyright side, Kimmel has a strong fair use claim. He used them for commentary and criticism without harming the market for Santos’ Cameos (in fact, they likely increased it). The fraud part is just nonsense. Santos didn’t lose money out of this, he made money.

The lawsuit undermines its copyright claims by inserting Kimmel’s commentary, which helps to show how this is fair use (and amusing):

KIMMEL: Yeah so now this Cameo thing, according to George, is really paying off. He claims he’s made more money in seven days than he did in Congress for a year. And part of that money came from me. I sent him a bunch of crazy video requests because I wanted to see what he would read and what he wouldn’t read, and I showed some of them on the air on Thursday, um, and now he’s demanding […] to be paid a commercial rate. Could you imagine if I get sued by George Santos for a fraud? I mean how good would that be? It would be like a dream come true. So since I started buying his videos his rates went way up to $500 a piece. He should be thanking me for buying these videos. But I have a big stockpile you want to see one? Again George had no idea these requests were from me, I just wrote them and sent them in. So “Will Santos say it?” Here we go […] [CAMEOS #4 and #5 were then published]

The lawsuit also includes the five prompts that Kimmel (under made-up names) submitted to Santos that were later aired. Kimmel says he submitted more, and it’s unclear what happened with the others, if Santos’ legal threat made them go away or if he even made them.

Still, for your enjoyment, here are the prompts:

a. On or about December 6, 2023, at approximately 4:46 p.m. Kimmel, misrepresenting himself as “Chris Cates” made the following fraudulent representation to Santos: “George please congratulate my friend Gary Fortuna for winning the Clearwater Florida Beef Eating Contest. He ate almost 6 pounds of loose ground beef in under 30 minutes – which was a new record! He’s not feeling great right now but the doctor thinks he will be released from the hospital soon. Please wish him a speedy recovery!” (“Fake Request 1”)

b. On or about December 6, 2023 at approximately 4:55 p.m. Kimmel, misrepresenting himself as “Jane” made the following fraudulent representation to Santos: “George please congratulate my mom Brenda on the successful cloning of her beloved schnauzer Adolf. She and Doctor Haunschnaffer went through a lot of dogs in the trial runs but they finally got it to stick. Tell her to give Adolf a big belly rub for me!” (“Fake Request 2”)

c. On or about December 7, 2023, at approximately 12:18 p.m. Kimmel, misrepresenting himself as “Ron” made the following fraudulent representation to Santos: “My name is Ron. Please tell my wife to call me George. Not George my name is Ron. You are George. Just tell her to call me George. But again Ron. I haven’t seen Swoosie or the kids since my disco birthday and it’s not fair. She says I burned down the shed shooting off fireworks but I was trying to scare a bear away. It isn’t fair. I love my Swoosie and I just want our family together on Christmas or if not that Valentimes Day or Flag. Watch out for bears.” (“Fake Request 3”)

d. On or about December 7, 2023, at approximately 12:32 p.m. Kimmel, misrepresenting himself as “Uncle Joe” made the following fraudulent representation to Santos: “George can you please congratulate my legally blind niece Julia on passing her driving test. They said she couldn’t do it – even shouldn’t, but she’s taught herself to be able to drive safely using her other sense. She’s not a quitter! That said, the day after she got her license, she got in a really bad car accident so if you could also wish her a speedy recovery that would be amazing. She’s in a bodycast and is a very bummed out – but with help from Jesus and President Trump, soon she will be back on the road!” (“Fake Request 4”)

e. On or about December 7, 2023, at approximately 12:26 p.m. Kimmel, misrepresenting himself as “Christian” made the following fraudulent representation to Santos:: “Hey George. My friend Heath just came out as a Furry and I’d love for you to tell him that his friends and family all accept him. His “fursona” is a platypus mixed with a beaver. He calls it a Beav-apus. Can you say we all love you Beav-a-pus? He also just got the go ahead from Arby’s corporate to go to work in the outfit so we’re all so happy for him to be himself at work and at home. Could you also do a loud “Yiff yiff yiff!”? That’s the sound Beav-a-pus makes as Beav-a-pus. Thank you so much.” (“Fake Request 5”)

The presence of a recently disgraced Congressman makes some of those videos seem newsworthy on its own, adding to the fair use argument.

As noted above, Disney has a few lawyers who understand copyright. It seems likely that Santos is going to get ripped to shreds in court.