Parents of Uvalde Shooting Victims Sue Meta, AR-15, Call of Duty For Enabling Mass Shootings

Exactly two years after the Uvalde school massacre, families of victims Friday filed two (much needed) wrongful death lawsuits in California and Texas against social media giant Meta, Activision — the maker of the popular video game “Call of Duty” — and Daniel Defense, the manufacturer of the AR-15 which the teen gunman used to kill 19 students and two teachers on May 24, 2022, in the Robb Elementary School massacre. The lawsuits were filed by the Connecticut law firm Koskoff Law, which in 2012 secured a settlement against the Remington Arms Co, the manufacturer of the weapon used in the Sandy Hooks massacre.

Friday’s lawsuits claim that Instagram, Activision and Daniel Defense have been “partnering…in a scheme that preys upon insecure, adolescent boys,” attorneys said in a news release. Meta and Activision “enabled and emboldened firearm manufacturers’ efforts to expand the market for their weapons by granting unprecedented, direct and 24/7 access to children.”

Call Of Duty, Instagram and Daniel Defense Liability

According to the lawsuits, the Uvalde gunman downloaded “Call of Duty: Modern Warfare” in November 2021, and had been playing previous iterations of “Call of Duty” since he was 15 years old. The video game prominently features a model of the AR-15, known as DDM4V7, that was used in the shooting, the lawsuits allege.

“Simultaneously, on Instagram, the shooter was being courted through explicit, aggressive marketing,” attorneys said. “In addition to hundreds of images depicting and venerating the thrill of combat, Daniel Defense used Instagram to extol the illegal, murderous use of its weapons.”

The gunman, on his 18th birthday, purchased the AR-15 used in the Uvalde shooting because “he was targeted and cultivated online by Instagram, Activision and Daniel Defense. This three-headed monster knowingly exposed him to the weapon, conditioned him to see it as a tool to solve his problems and trained him to use it,” Koskoff said in a statement.

On April 27, 2022, attorneys say, the gunman created an account with Daniel Defense and added a DDM4V7 to his online cart. Then on May 16, 2022, just 23 minutes after midnight on his 18th birthday, he purchased the weapon — just eight days before the Uvalde shooting.

The same group of families also said Wednesday they are filing a $500 million federal lawsuit against nearly 100 state police officers who took part in the botched law enforcement response to the shooting, along with former Robb Elementary School principal Mandy Gutierrez and Pete Arredondo, the school district’s police chief who was fired months after the shooting.


I am entirely of the opinion that combat video games are responsible for mass shootings by minimizing, encouraging, promoting, and enabling gun violence, along with antisocial behavior to name a few.

In a statement provided to CBS News, an Activision spokesperson said the “Uvalde shooting was horrendous and heartbreaking in every way, and we express our deepest sympathies to the families and communities who remain impacted by this senseless act of violence. Millions of people around the world enjoy video games without turning to horrific acts.”

This argument shows exactly how the video game industry minimizes the fact that it has knowingly caused hundreds of mass shootings over the past few years, and no less than 26 mass shootings in 2023 alone, and keeps doing so. To them, everything is okay if there is no evidence yet that millions of people are turning into violent psychopaths. The video-game industry seems to have little respect for the life of a few thousand people, simply because by their own admission, they have no intention to stop promoting and enabling gun violence until at least a million people turn into mass shooters.

Instagram’s role is obvious and similar to the intentional encouragement of child pornography. Instagram is chasing ad revenue and won’t stop at anything to get it. Connecting criminals, psychopaths, and gun companies with vulnerable users such as children is precisely how Instagram achieves its business goals in an era where social media engagement is sharply dropping due to privacy violations and exploitation of users content for the purpose of training of AI without users consent.

So in a way, violent video-games are a form of mis and disinformation designed to rationalize mass-scale murder. Just like porn that was initially touted in the last century as a form of liberation, but in reality turned out to be an instrument of misogyny, incurable diseases, modern slavery, and promotion of nonconsensual content for profit.. video games too are promoting ideas that are disguised as an outlet of the imaginary need to act out violence, but in reality are a tool of intellectual and moral decay by diminishing the value of human life and providing ever more justification for violence. Not every user will turn into a psychopath, but looking at the rates of juvenile depression, it is safe to say that the damage is more far-reaching than we are told. Mass shootings are only the tip of the iceberg.

Rent Cartels By Algorithm Deepen Housing Crisis, Tenants Pay Millions of Dollars Above Fair Market Prices

Dozens of class actions filed since 2022 against the Texas based company RealPage, now consolidated into a single class action in Nashville, Tennessee, demonstrate the single most significant factor behind the last few years monumental rent increases and lack of affordable housing across the continent: widespread and unchecked anti-competitive rent price-fixing directed by shady algorithms.

Since the Propublica investigation in 2022 that put a spotlight on the issue, the situation has only worsened. Rent-fixing by algorithm has enabled and continues to enable landlords and real estate companies to do covertly and indirectly what they can’t do directly. As we speak, rents are being pushed into stratospheric heights, forcing many low earners into encampments.

RealPage’s software uses an algorithm to churn through a mountain of data during the night to suggest daily prices for available rental units. The software uses not only information about the apartment being priced and the property where it is located, but also private data on what nearby competitors are charging in rents. The software considers actual rents paid to those rivals—not just what they are advertising, the company told ProPublica.

Two district attorneys (Washington, Arizona) are suing Realpage and more than a dozen of the the largest apartment building landlords, accusing them of a scheme to artificially fix rental prices in violation of U.S. antitrust law, all while concealing their conspiracy from the public. RealPage has denied any wrongdoing in the earlier cases, and it said it would contest both cases.

Washington

Washington alleges that 14 landlords conspired to keep rental prices high using RealPage’s revenue management platform and seeks triple damages and other relief to restore competitive conditions. Landlords conspired to share information, limit supply, and drive up rents via RealPage’s software which forced tenants to pay millions of dollars above fair market prices.

“In a truly competitive market, one would expect competitors to keep their pricing strategies confidential — especially if they believe those strategies provide a competitive edge,” the lawsuit says.

In response, RealPage declared that there is no causal connection between revenue management software and increases in market-wide rents. The problem with denying causal connection, however, is a flagrant lack of algorithmic transparency and intentional concealment from the public. You can’t both have a secret algorithm and deny causation between the algorithm conduct and the obvious widespread result being artificial rent increase and illegal price-fixing. So that defense will fail.

Arizona

Arizona alleges that by providing highly detailed, sensitive, non-public leasing data with RealPage, the defendant landlords departed from normal competitive behavior and engaged in a price-fixing conspiracy. RealPage then used its revenue management algorithm to illegally set prices for all participants.

Moreover, RealPage’s conspiracy with the landlord co-defendants violate both the Arizona Uniform State Antitrust Act and the Arizona Consumer Fraud Act.

Arizona’s antitrust law prohibits conspiracies in restraint of trade and attempts to establish monopolies to control or fix prices. The State’s consumer fraud statute makes it unlawful for companies to engage in deceptive or unfair acts or practices or to conceal or suppress material facts in connection with a sale, in this case apartment leases.

The illegal practices of the defendants led to artificially inflated rental prices and caused Phoenix and Tucson-area residents to pay millions of dollars more in rent.  

Defendants conspired to enrich themselves during a period when inflation was at historic highs and Arizona renters struggled to keep up with massive rent increases.

The Class Actions

The private lawsuits by renter-plaintiffs accuse RealPage to collude with landlords to artificially inflate rents and limit the supply of housing, alleging that owners, operators and managers of large residential multifamily complexes used RealPage software to keep rental prices in many major U.S. cities above market rates and shared non-public, commercially sensitive information with RealPage as part of the conspiracy.

Two landlords have settled so far.

Amazon One Seems Ideal For Age Verification For Aylo Sites

Not sure why I am learning about this contactless biometric ID tool today (living in Canada for the past 4 years must be it) but the thing exists since 2020 as a payment method throughout the USA, being deployed in no less than 500+ Wholefoods locations. I am not trying to advertise for Amazon here, but palm recognition technology strikes me as a way more sophisticated approach than mobile pay, microchipping, or physical credit cards and paper ID.

I am frankly astonished that, during the pandemic, palm recognition wasn’t used to verify immunization status. I totally hated showing my QR code along with government issued ID to randos on a powertrip behind a plexiglas carefully studying my papers while I wanted to kill them. To the extent possible, I refused to comply, rushing past QR lines like a “distracted consumer” from hell, robust EDM blasting through my headphones, occasionally displaying a “talk to the hand” sign, shouting out “do not comply!” here and there to my alienated co-citizens… Who knew that “talk to the hand” would have been a literal solution. A palm scan would’ve totally saved me the humiliation (and subsequent PTSD). By 2022, I had entirely stopped going to venues and restaurants altogether and am still unable to return due to these painful memories.

And it sucks in a way because I love order and compliance, and all of a sudden I had no choice to boycott venues and intentionally behave like a dork contrary to my nature, because I couldn’t reconcile my law-abiding character with my absolute duty to oppose tyrannical bullshit (in my case it was the health status disclosure that broke the camel’s back, since I was cool with distancing and still am very much into it). For a minute I embraced the idea that I may be a conspiracy theorist, although I only got acquainted with such theories for the first time mid-2020 and in general I have very low opinion of politics. The rule of law is above politics and division, right (RIGHT!) Wrong. The rule of law never stood a chance next to an executive order that took 2 minutes to draft on toilet paper… now, how about a few hundred thousand of executive orders!

Although it’s too late to go back and fix that entirely avoidable fiasco, here we are 3 years later, the same government that brought us the privacy invading mandates is now suuuuper worried about the privacy of porn-consumers. I’m not here to judge, but we have a French Canadian proverb “tu ne peux pas avoir le beurre et l’argent du beurre”. You can’t have it both ways, keep the butter and the money from the butter. Or can you!

The good news is that palm recognition is a win-win. When you register with Amazon One, you would link your palm scan (that also records your veins for a unique biometric configuration) with your credit card, ID and mobile number. This data is only available to Amazon One and purportedly not shared with third parties or law enforcement (unless there is a warrant).

To access Aylo material, all you’d need to do is hold your hand in front of your device camera to ascertain you are not a minor. No names, addresses, or any personal data whatsoever are ever disclosed or stored, nobody looks at government issued IDs, so that, privacy is fully shielded. A VPN will be useless in that respect, as would be Tor, as would be a fake ID. Palm recognition could also be used to block children from accessing social media and literally anything parents decide to block them from. On a side note, please don’t use Tor for porn, it slows it down for everyone else.

In the eventuality of a (cough) new pandemic, palm recognition would also contain your immunization status and I mean your entire vaccination track-record from childhood, dispensing with the need to show government issued ID QR codes and immunization booklets. It would facilitate and speed up visa issuing (i.e. you need 2xPolio, HepB, Dengue, etc for India). All you’d need to do is hover your hand over a scanner and get your visa, board a plane or train, or access whatever venue you need to go to.

And finally, if enough stores take up palm recognition, you wouldn’t need to carry a phone or physical wallet anymore.

A TikTok Ban? Yawn.

If TikTok hadn’t tried so hard to be like Meta (and vice versa) and if we hadn’t already seen a few hundred uniquely ludicrous bills strut their stuff on the legislative catwalk of the past few years, I would possibly maybe care about this ban. I would maybe even give advice on how to bypass the ban. The fact that two different US administrations keep coming up with the same monopolistic and totalitarian idea again and again shows us that this has nothing to do with national security, just like the online harms bill was never about protecting children. Even before the “ban” was announced, I wondered if Meta hadn’t already acquired TikTok. The algorithm acts suspicious for months now. I don’t trust it anymore.

I was all over TikTok in 2019. Now, TikTok is no different than Meta or Google as it openly prioritizes ads and sponsored content over organic content.

The main issue is that social media engagement has dropped significantly over the past years, and continues to decline due to algorithmic discrimination and censorship that have become impossible to hide since the pandemic. Another issue is TOO much data and not enough reliable filters, in other words, there are way more bots in this world than users, but bot-generated data ends up in the same place as organic data. It is counterproductive for analytics and creates bot-bubbles. A simple way to fix this is to charge users a symbolic sum for social media use and link each user with their digital wallet or credit card (with banking info being centralized to a universal digital ID). This will grant full control over the identity and conduct of all active users while bot farms will be virtually eliminated. But we all know that the day users are de-anonymized and bots are eliminated, advertising revenue will also instantly disappear. Human users are already curbing their expression (or speech in US terminology) and human users don’t watch ads. Only bots and very ancient humans who don’t know how to bypass ads watch ads. Only bots (and paid influencers) at this point have a semblance of free speech because their speech is narrowly scripted into one of the two ideological doctrines (right or left). Speech that is logical or falls anywhere in the middle will be shadow-banned, so technically you won’t be able to see it even if it exists. And if nobody sees a major portion of engagement, an army of bots needs to step in to replace the hidden engagement with non-organic or programmed “approved” engagement (for advertising revenue purposes). The vicious circle is that very little of any engagement on the main social media platforms can be attributed to actual human beings.

In a way, the very thing that put social media on the map is turning out to be a series of potential harms and a national security risk.

If national security was of any concern, no mobile app would be allowed (for years) to collect, store, use and share the personal information of users located outside of its assigned territorial jurisdiction or the country of incorporation. So, if it is a Chinese app, it shouldn’t operate anywhere outside of China. If it is a US app, it should only work in the US. It means Meta wouldn’t be allowed to legally operate anywhere except in the US. If a phone would leave the US borders, the Meta app should be automatically blocked. And I could go on if I cared, but I don’t. Do you?

Age Verification Bill Is Preferable to (too little too late) Online Harms Bill

Age verification to access adult content online is the only viable and sensible way to counter the irreparable damage pornographic platforms cause to society. The fact that Pornhub prefers to block access to their content in jurisdictions that enforce age verification is a sign that Pornhub is nothing less than a criminal platform. If all adult sites are truly “sketchy” to cite our prime minister, and couldn’t be trusted to verify ID, then I don’t understand why they are allowed to legally operate. They should simply be blocked and it would save the government a great deal of money.

Last time I checked, everyone in Canada (and many places in the US) needs to show their papers to buy alcohol, cigarettes, or government weed. Even nightclubs want to see your papers before letting you in. If you don’t want to show your papers, you don’t get in. If you’re too young, you don’t get in. Not once have I been able to get into a club in our (extremely liberal) Quebec before the age of 18, or the (more conservative) province of Ontario before the age of 19. We also hear stories of the time when porn content was only available on tangible format (magazines, videotapes, dvd’s) people had to show ID to access such content. Yet, online porn of the vilest kind has always been accessible to children in Canada. How does that make any sense?

I personally worked on cannabis legalization memoir during my second year in law school in 2016 (two years later, it was legalized) and age verification was always a sine qua non for legalization, given how harmful weed can be to the developing brain. In the same manner, I also recommended a system preventing the sale of cannabis to people experiencing mental health issues. It didn’t get implemented, but it should. You can hate me for it but the science is clear, if you have a diagnosed mental health condition, weed will make you psychotic and likely a danger to yourself and others. In order to counter the overdose epidemic, I am also a proponent of the legalization of opiates, and mainly pharmaceutical opiates that should be available to all addicts, who are often patients in need of pain-management let down by the health system, to be administered by certified nurses in every pharmacy of this country.

However, when it comes to porn, I believe the societal damage exceeds that of any drug. I believe that online porn (through the nonconsensual user generated model that is being pushed and rewarded on popular platforms) is the main factor behind the mental health epidemic amongst minors. Many kids never really fully get to understand how consent works. Those who believe they need to perform the violent acts depicted in porn videos, become suicidal. For many people, it is the first introduction to heterosexual relations and it makes kids hate society and their biological sex. It is not a coincidence that so many kids refuse to conform to their gender.

Given that online porn tends to obfuscate the notion of consent for profit, which in itself promotes content depicting self-harm and assault, studies are proving now and again that online porn is the main driver of nonconsensual content, antisocial behaviour, intimate partner violence, criminal harassment, cyberbullying (to name a few), and now identity theft via deepfakes.

This is not an ideological or political issue. I don’t understand why online pornographers in Canada should be exempt from age checks. Even less do I understand why the federal government keeps giving these platforms a free pass to make their content available to everyone, for free (a paywall would fix a few issues). But, this is the feeling I am getting when reading the Online Harms Bill that took 5 years in the making, with its convoluted system of takedown enforcement, as if Canada ever enforced anything. I myself spent 4 years in court to take down commercial nonconsensual stuff and it only worked out when the adverse party corporation declared a bankruptcy, briefly went out of business, and their international distributor finally caved because even Google intervened before the courts reluctantly did. Canadian courts in general are mildly useless, as they seem to spend most of their efforts in further sexualizing survivors and siding with the adverse parties’ commercial interests (like the government consistently sides with Pornhub). Nobody can tell us how Canada under the online harms bill will enforce “hefty” fines on platforms that operate in Sweden, South Korea, Morocco, or Iceland for example. In my case I had to take down over 5400 pieces of online content spread over 50 countries and an extraterritorial interlocutory injunction wasn’t enough. It was only the beginning. But oh, age verification has nothing to do with Digital ID (something that will happen anyway, don’t worry). It has to do with common sense.

Not once in my life have I heard an argument saying that parents should be the ones to enforce a ban on cigarettes or cannabis, rather than the state to impose age verification at the stores. Not once have I heard the argument that age verification to access cannabis is infringing on the privacy of old farts who want to buy legal cannabis. And don’t start me on the times we needed to disclose our health status AND show government ID to buy food at Costco or Walmart, a trauma that feels like yesterday… (will not forget, neither forgive). Why is online porn so different and important to the federal government that it should be accessible for free to children at all times?


Update: Although Australia failed to follow up on introducing age checks last year, given their unique diaspora of single-user sex workers and (not human trafficked) entrepreneurs, the UK is already surprisingly advanced into determining “trusted and secure digital verification services” with a focus on “layered” checks. It is encouraging to know that government ID alone won’t be enough to access adult sites in the UK, and that users will need to submit at least one instant selfie (timestamped at the moment of access) to prove they really are who they say they are. If photos on ID don’t match selfies, users’ access to the sites will be blocked. This is easily enforceable through third party facial recognition AI that will not store any personal information, face scans, or selfies, and will only assess age on a moment to moment basis. Contrary to banks who regularly leak users personal information for the simple reason that they need to store such data, it won’t be possible for pornsites to leak anything because they won’t have access to any personal information, and the third party AI verifying it won’t be allowed to store it.

If we worry so much about porn sites handling sensitive information, then we should bar them from taking users credit cards for their premium content. As it is now, they have large databases of credit cards. A credit card is sufficient to perform a full credit check on the holder, so it is pretty damn sufficient at identifying a user.

Canada should follow in the steps of the UK and rewrite the online harms act, first to remove the bizarre ideological sections regarding hate speech (we already have hate speech offenses in the criminal code and more than enough caselaw on the matter), as well as the bizarre life sentence for vague ideological thought crimes, since it has nothing to do with protecting children. I wouldn’t mind a life sentence for child porn producers and pedophiles, however, who currently get out with a slap on the wrist; (2) borrowing from the UK Online Safety Act, to mandate the use of trusted and secure digital verification services including real time facial recognition, face scans, digital wallets, government ID, selfies and many combinations thereof. Of course the cost will be relayed on platforms. This will unite Bill S210 and C63 on same footing; (3) similar to the UK Act, Canada should exempt Twitter, Reddit, and other mainly text-based platforms; (4) leave the 24 hour takedown requirements, but create an expeditious appeal process to affected users to reinstate content that doesn’t fall under the purview of the act, and impose dissuasive fines including the payment of attorney fees for frivolous takedown requests (à la DMCA by analogy). (5) to err on the safe side, Canada should mandate all mobile providers to automatically block porn sites, so that only computer cameras would be used for real time face scans and face video.

Another reason to block adult mobile apps is that all mobile apps are specifically designed to collect and store personal information even when you are not using them. Mobile OS also regularly take photos, videos and recordings of users for the purpose of improving their experience. It is standard practice to collect extensive personal information on mobile users since intelligent phones exist. Cybersecurity experts are able to decrypt such data packets while hackers (or law enforcement with or without a warrant) are able to intercept and use them. If you access porn on your phone, you can safely expect that your most intimate and biometric details are stored in many many places, and you would be even more surprised to learn that you automatically consented to all of it. Age verification would be the least of your problems. There are tons of applications capable of accurately guessing your age based on what you do with your phone.

Finally, we should never leave it to parents to protect children, because if you read criminal jurisprudence, parents and especially foster parents (and other family members) are often factors of child abuse and child pornography in this countryfor the reason that they have unfettered access to these children. Abusive parents also get away with a slap on the wrist. Since we don’t trust parents to respect children’s choice of gender, it would be a little hypocritical to trust them to safeguard their kids from porn. I wouldn’t.


Update 2nd: after wasting a few hours on online harms bill scenarios, I predict the bill has no future other than to target speech criticizing the bill (like this post) and to ban survivor speech (already going on without the help of the bill). So basically, if the bill ever comes to exist, it will achieve the exact opposite effect of its apparent intended purpose. As Australia has shown, nothing concrete will happen in the sphere of child protection anywhere. These bills are all for show, as corporate commercial interests will always trump child safety and consent. Even the UK will only apply age checks from 2025. Why 2025? Because the UK will likely also bail before the promised deadline and drop the checks altogether shortly before 2025. Comparative law should be renamed to comparative inefficiency.

Just like electric cars promises are flopping all over the place, because you can’t tell people to choose between doing their laundry or charging their car to go to work, you also can’t authorize a mega-polluting wetland-destroying Swedish project on unceded Mohawk territory, and pretend to care about the environment or ancestral rights in the same sentence. And very obviously, you can’t make porn accessible to children for free at all times and pretend to be a good person just because you wrote another fake bill (which is not quite written yet).

The point is, do not wait for a bill or a court to save you. As I previously said, the only way to enforce anything in the realm of nonconsensual material is to arm yourself with patience and look for ways in and out of court to apply pressure on local courts via foreign legal mechanisms, file police reports and Interpol reports, seek injunctions, sue platforms, sue banks that continue to work with rogue platforms, use the takedown and delisting mechanisms of search engines, make videos, hit film festivals, write open letters to ministers.. and whatever other grassroots ideas you may come up with. If you sue in damages, sue in the US, not Canada. The important thing is to take action every single day. I love how in the US people pick up the phone and call their state rep or senator. The only way out is to let the whole world know that you did not consent. Don’t stop until everything is taken down to the ground.

Is the Ideological Decentralization of AI Good For Innovation

It is likely a sign of evolution when global superpowers begin competing for digital innovation rather than outdated, old-world weaponry. If we are officially in a cold war, then it means that inventors and other talent will ultimately have the choice to work for the side that treats them the best. It means there will …

China Internet Court Attributes AI Generated Image Copyright To Human Prompt Creator

On Monday, the Beijing Internet Court held that a human plaintiff prompt is sufficient to invoke copyright protection in a Stable Diffusion generated image, so long as the output qualifies as an “original” work. Copyright is determined on a case by case basis, so this decision is not entirely inconsistent with other AI jurisprudence trends …

AI Voice Cloning Without Consent Is Identity Theft, Human Voice Is A Biometric Identifier

You may have heard by “experts” that “there are no laws” against unauthorized voice cloning. These experts conveniently forget that identity theft is a criminal offense under any jurisdiction in this world. Human voice is a unique biometric identifier linked to human anatomy and identity and soon inextricable from your universal Digital ID. Anyone (yes …

US FTC Memo To Copyright Office Warns Gen AI Causes Unfair Competition, Deceptive Practices, and Consumer Risk

The United States Federal Trade Commission (FTC) submitted a comment to the Copyright Office after conducting its own AI study last August. Although the FTC has no jurisdiction over copyright matters, it does have jurisdiction over consumer and competition violations and can indeed investigate and penalize companies for such violations independent of parallel copyright lawsuits, and in spite of …

Hanagami Wins Appeal Over 4 Count Choreo Infringement by Epic Games Fortnite Emotes

This is fantastic news. I am reading the 31 page decision by the 9th Circuit Court of Appeal right now and will learn the 4 counts along with the full emote dance for a split screen video. It is amazing that courts are finally starting to recognize that a 2 second sequence is not too short to deserve copyright protection and cause liability when commercially used without permission. When you copy someone’s moves without permission for profit, you will be on the hook. And no, I don’t believe that this case will curb the use of dance moves in video games. Certainly not at the stage of dismissal and prior to a jury verdict. On the contrary. Emotes are the most commercially viable feature of Fortnite and the game would be irrelevant without them.

This is the video that was used in court to prove the identical similarity between the original routine and the moves copied by Epic Games.

I personally don’t play Fortnite or any other video game using gun violence and allowing for the murder of innocent civilians (that’s the majority of games unfortunately), since I am against gun violence in real life too. Something tells me that playing violent games is a form of indirect consent to wars and violence, so I carefully avoid engaging with entertainment that depicts assault, battery, homicide, misogyny, and homophobia. The metaverse is no exception. Zero tolerance for violence. However, I do dance to Fortnite emotes I encounter on Tik Tok (so long as there are no guns involved). So I will dance to this routine as well.

I note in the US there is the practice to “register” copyright before filing a lawsuit, however registration is not proof of ownership, but rather a formality that can create a rebuttable presumption (prima facie evidence) of ownership if done in the 5 years of first publication1. A Youtube video of a filmed choreography (prior to defendant’s use) and anything else with a valid time-stamp of a filmed process is actual proof, for example a series of user generated or fan videos of the original choreography posted on a platform like Youtube or Tik Tok after first publication and prior to the commercial use by defendant. Vimeo can’t be used in court in this way because it allows users to replace existing videos with more recent ones and keep the initial post date and engagement. As for Youtube and Tik Tok, even private and unlisted videos may qualify.

So this case is now going to trial, unless it settles (which it most certainly will).

  1. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38bHighlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works. ↩︎

My Initial Highlights (this will provide a good overview of dance jurisprudence in the US, there is none in Canada although statutory protections exist in the Copyright Act)

Dance is one of the oldest forms of human expression. Recognition of dance as a form of copyrightable subject matter, however, is a far more recent development. While early versions of the Copyright Act extended statutory protection to dramatic works and musical compositions, dance long remained outside the purview of copyright law. In 1976, Congress for the first time extended explicit copyright protection to “choreographic works,” bringing dance in line with the other performing arts. Nonetheless, the field of choreography copyright has remained a largely undefined area of law. Few courts have had occasion to consider the scope of copyright protections for choreographic works.

To prevail on a claim of copyright infringement, a plaintiff must show that his original work and the allegedly infringing work are “substantially similar.” […] The dispute in this case thus turns on how to properly apply the substantial similarity test in the context of choreographic works to determine whether Hanagami has plausibly alleged that his choreographic work and Epic’s emote are substantially similar.

The district court erred in its application of the substantial similarity test as Hanagami plausibly alleged that his choreography and Epic’s emote share substantial similarities. We thus reverse and remand for further proceedings.

Emotes are animated movements or dances that players use in celebration of a victory or during virtual concerts. The cost of an emote varies from 200 V-Bucks to 800 V-Bucks, depending on how “rare” the emote is considered within the game.

A video of the “It’s Complicated” emote, as performed by an avatar in Fortnite’s marketplace, is available online. See Insane broz, It’s Complicated Emote | Fortnite – Battle Royale, YouTube (Mar. 31, 2020)].

In this action, Hanagami alleges that Epic’s “It’s Complicated” emote infringes Hanagami’s Registered Choreography. Relevant to this appeal, Hanagami brings claims for direct copyright infringement and contributory copyright infringement.

The district court determined that the overall “steps” Epic allegedly copied—which the court described as “a two- second combination of eight bodily movements, set to four beats of music”—were not protectable under the Copyright Act because they were only a “small component” of Hanagami’s work.

The court, having concluded that the dance steps were not protectable on their own, then concluded that Hanagami was entitled to protection “only for the way the Steps are expressed in his Registered Choreography” as a whole, “i.e., in the entire five-minute work.”

We review de novo a district court’s dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). See Wilson v. Lynch, 835 F.3d 1083, 1090 (9th Cir. 2016). When reviewing the complaint, we take all allegations of material fact as true “and decide whether the complaint articulates ‘enough facts to state a claim to relief that is plausible on its face.’” Starz Ent., LLC v. MGM Domestic Television Distrib., LLC, 39 F.4th 1236, 1239 (9th Cir. 2022) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Statutory Background

  • The 1976 Act does not define the term “choreography,” and Congress left little clue about what it might mean. See Bikram’s Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1043 (9th Cir. 2015). Indeed, Congress considered the term “choreographic work[]” to have a “fairly settled” meaning. Id. (citing H.R. Rep. No. 94-1476, at 53 (1976)). On this point, the legislative history explains that Congress found it unnecessary to “specify that ‘choreographic works’ do not include social dance steps and simple routines.”
  • Although more than forty years have passed since the 1976 Act’s enactment, few courts have addressed federal copyright protections for choreographic works. […] The most famous case in this area is Horgan v. Macmillan, Inc., in which the Second Circuit considered whether photographs of a ballet could infringe the copyright on the choreography of the ballet. 789 F.2d at 158. In that case, Macmillan published a book of color photographs of the New York City Ballet Company’s production of The Nutcracker. The book portrayed, through text and photos, the story and history of The Nutcracker ballet. Id. The estate of George Balanchine, who famously choreographed the production, sued for copyright infringement. Id. at 158. The district court found that Macmillan had not infringed the copyright for the ballet because the photographs did not capture “the flow” of the dancer’s steps and “[t]he staged performance could not be recreated” from the photographs. Id. at 160.
  • In appeal, the Second Circuit reversed and remanded, concluding that the district court erroneously held that still photographs could not infringe a choreographic work. To reach this conclusion, the Second Circuit looked to the Compendium of U.S. Copyright Office Practices (“Compendium II”) as persuasive authority. Notably, the Second Circuit quoted the definition of “choreography” in the Compendium II, which described the term as “the composition and arrangement of dance movements and patterns.” Id. at 161 (quoting U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 450.01 (2d ed. 1984) (Compendium II)).

The Compendium is a manual published by the Copyright Office. It provides instruction to agency staff and guidance to the general public on the Copyright Office’s requirements, regulations, and legal interpretations.

  • The Second Circuit addressed another choreography copyright claim in Martha Graham School & Dance Found., Inc. v. Martha Graham Center of Contemporary Dance, Inc., 466 F.3d 97 (2d Cir. 2006). There, the court considered a dispute over which entity was the rightful owner of choreographic works produced by the famous dancer Martha Graham. The court held that there was sufficient evidence to establish that Graham had assigned copyrights to the dances to her foundation, but it did not reach the underlying question of copyright infringement, nor did it elaborate on the definition or characteristics of a choreographic work.

The Compendium outlines several elements that choreographic works typically contain, “although the presence or absence of a given element is not determinative of whether a particular dance constitutes choreography.” Id. § 805.2. These features include “rhythmic movement in a defined space,” “compositional arrangement,” “musical or textual accompaniment,” “dramatic content,” “presentation before an audience,” and “execution by skilled performers.” Id. § 805.2(A)–(F)

The Compendium does not draw a bright line distinction between copyrightable choreography and uncopyrightable dance; instead, there is a continuum on which “[m]any works fall somewhere in between.” Id. § 805.5(B). Still, there are limitations on what types of movements are copyrightable as choreography.

“Individual movements or dance steps by themselves are not copyrightable, such as the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet.” Id. § 805.5(A). Nor will the Copyright Office register “short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if the routine is novel or distinctive.” Id. Individual dance elements “are not copyrightable for the same reason that individual words, numbers, notes, colors, or shapes are not protected”—they are the “building blocks of choreographic expression” from which all choreographic works are built. Id.

Similarity Test

Our circuit uses a two-part test to assess substantial similarity. The first part, known as the “extrinsic test,” “assesses the objective similarities of the two works, focusing only on the protectable elements of the plaintiff’s expression.” Rentmeester, 883 F.3d. at 1118 (citing Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002)). The second part, referred to as the “intrinsic test,” “test[s] for similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance.” Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 637 (9th Cir. 2008) (quoting Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir.1994)). District courts apply only the extrinsic test at the pleadings stage, “as the intrinsic test is reserved exclusively for the trier of fact.” Williams v. Gaye, 895 F.3d 1106, 1119 (9th Cir. 2018). The district court’s application of the extrinsic test is the primary issue on appeal.

We agree with Hanagami. The district court’s approach of reducing choreography to “poses” is fundamentally at odds with the way we analyze copyright claims for other art forms, like musical compositions. We reverse and remand to the district court on this basis.

a. The district court erred in analyzing the elements of choreography. To apply the extrinsic test, courts must first distinguish between protectable and unprotectable elements, and “ask only whether the protect[a]ble elements in two works are substantially similar.” L.A. Printex Indus. Inc. v. Aeropostale, Inc., 676 F.3d 841, 849 (9th Cir. 2012). This process is referred to as “filtering.” See, e.g., Williams, 895 F.3d at 1117.

But we have long recognized that “[c]ertain types of works can be dissected into protected and unprotected elements more readily than others.” Rentmeester, 883 F.3d at 1119. For example, a photograph cannot be easily broken down into protected and unprotected elements because none of the “various creative choices the photographer made in composing the image—choices related to subject matter, pose, lighting, camera angle, depth of field, and the like” would receive “copyright protection when viewed in isolation.” Id. at 1119.

To account for this, we also employ a “selection and arrangement” approach to assess substantial similarity. This approach protects the “particular way in which the artistic elements form a coherent pattern, synthesis, or design.” Skidmore, 952 F.3d at 1074; see Swirsky v. Carey, 376 F.3d 841, 848 (9th Cir. 2004) (“[A] substantial similarity can be found in a combination of elements, even if those elements are individually unprotected.”).

Like other forms of copyrightable material, choreography is composed of various elements that are unprotectable when viewed in isolation. An individual, stand-alone dance movement, such as a plie, is equivalent to an “idea” that is not protectable by copyright. As a result, subsequent choreographers can use the same individual movements to produce new choreographic works of their own, as long as the new compositions are not substantially similar to the copyrighted work. Similarly, a choreographer cannot claim protection over the use of tempo, transitions, or rhythm in a choreographic work. The uncopyrightable elements of a dance instead function as “the building blocks for a choreographer’s expression, in much the same way that words and short phrases provide the basic material for writers.” Compendium § 805.4(D).

What is protectable is the choreographer’s “selection and arrangement of the [work’s] otherwise unprotected elements.” Cf. Rentmeester, 883 F.3d at 1120 (determining copyrightability of a photograph). Thus, while individual dance movements may not receive protection, their “[o]riginal selection, coordination, and arrangement . . . may be protect[a]ble expression.” See L.A. Printex, 676 F.3d at 849 (determining copyrightability of a floral textile design). Again, this approach is consistent with copyright in other contexts. See Metcalf v. Bocho, 294 F.3d 1069, 1074 (9th Cir. 2002) (explaining that individual musical notes are not protected but their arrangement may be), overruled on other grounds by Skidmore, 952 F.3d at 1051; Rentmeester, 883 F.3d at 1120 (explaining that individual elements of a photograph are not protected but their combined selection and arrangement may be).

We do not, however, have a “well-defined standard for assessing when similarity in selection and arrangement becomes ‘substantial,’” largely because it is a fact-driven and context-dependent inquiry. Rentmeester, 883 F.3d at 1121. We have suggested generally that the “selection and arrangement of elements must be similar enough that ‘the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them.’” Id. (citing Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960)).

The district court correctly recognized that choreography falls within a selection-and-arrangement framework, but it erred at the first step of that analysis: breaking down the elements of the choreographic works.

The district court’s reduction of choreography to “poses” was particularly problematic because choreography is tied closely to movement. Static poses cannot possibly capture the flow of movement that is integral to choreography as a form of art. See Lakes at 1848 (noting that “movement itself is the choreographer’s means of expression . . . inher[ing] in how the choreographer progresses the dancers from position to position, not necessarily in the mere order of the positions themselves”).

We agree with Hanagami that “poses” are not the only relevant element underlying a choreographic work. Hanagami persuasively argues that there are several other “expressive element[s] present in choreography,” including “body position, body shape, body actions, transitions, use of space, timing, pauses, energy, canon, motif, contrast, [and] repetition.” These more discrete and technical elements are conceptually similar to elements we recognize in other copyright contexts, particularly the field of music.

In music copyright cases, we routinely dissect and analyze many musical elements, including “melody, harmony, rhythm, pitch, tempo, phrasing, structure, chord progressions, and lyrics.” Swirsky, 376 F.3d at 849 […] In Skidmore, for example, we considered a plaintiff’s allegations that the song Stairway to Heaven copied a combination of five musical elements from the plaintiff’s work: minor chromatic line and associated chords; duration of pitches of minor chromatic line; melody placed over the descending chromatic line consisting of combination of arpeggios and two-note sequences; rhythm of steady eighth note beats; and pitch collection. And in Williams, we assessed the combined presence of eight musical elements that plaintiffs claimed rendered the two songs substantially similar. 895 F.3d at 1117–18 (assessing alleged similarities between two songs, including the bass lines, keyboard parts, signature phrases, hooks, “Theme X,” bass melodies, word painting, and placement of the rap and “parlando” sections in the two songs); see also Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000)

In fact, we have held that it would be error for a district court to “disregard chord progression, key, tempo, rhythm, and genre” when assessing a musical chorus because “no approach can completely divorce pitch sequence and rhythm from harmonic chord progression, tempo, and key, and therefore support a conclusion that compositions are dissimilar as a matter of law.” Swirsky, 376 F.3d at 848.

We see no reason to treat choreography differently. To analogize from music to dance, reducing choreography to “poses” would be akin to reducing music to just “notes.” Choreography is, by definition, a related series of dance movements and patterns organized into a coherent whole. The relationship between those movements and patterns, and the choreographer’s creative approach of composing and arranging them together, is what defines the work. The element of “poses,” on its own, is simply not dynamic enough to capture the full range of creative expression of a choreographic work.

At the motion-to-dismiss stage, the court must only consider whether the plaintiff has plausibly alleged that the two works share substantial similarities.

Because the district court failed to assess the discrete combination of elements of the Registered Choreography, it erred in deciding as a matter of law at the motion-to-dismiss stage that the two works were not substantially similar. Taking the allegations in Hanagami’s complaint as true, he has plausibly alleged substantial similarity under the extrinsic test.

A plaintiff need not set forth detailed factual allegations about the elements of choreography to survive a motion to dismiss. See Malibu Textiles, Inc. v. Label Lane Int’l, Inc., 922 F.3d 946, 951 (9th Cir. 2019). The facts alleged in the complaint must simply “‘be enough to raise a right to relief above the speculative level’ and to ‘state a claim to relief that is plausible on its face.’” Id. at 951 (citing Bell Atl. Corp., 550 U.S. at 555, 570). Hanagami met this burden.

b. The district court erred in dismissing Hanagami’s claim because the choreography was “short” and a “small component” of Hanagami’s overall work. In addition to deciding that the poses in Hanagami’s choreography were unprotectable, the district court also reasoned that Hanagami could not claim protection over the allegedly copied “Steps” as a whole, which the court defined as “two seconds, four beats of music, or eight body positions, repeated ten times throughout the registered choreography.” The court emphasized that the four-count segment was not protectable because it comprised only a “small component” of Hanagami’s overall five-minute routine and was closer to an uncopyrightable “short” dance routine. We reject this conclusion for several reasons.

First, “no bright line rule exists as to what quantum of similarity is permitted before crossing into the realm of substantial similarity.” Baxter v. MCA, Inc., 812 F.2d 421, 425 (9th Cir. 1987). That means that, “[e]ven if a copied portion be relatively small in proportion to the entire work, if qualitatively important, the finder of fact may properly find substantial similarity.”

In Skidmore v. Zeppelin, for example, we held it was a jury question whether the opening notes of Stairway to Heaven were substantially similar to an eight-measure passage of the song Taurus. Skidmore, 952 F.3d at 1059; see also Baxter, 812 F.2d at 425 (rejecting the argument that a six-note sequence of a song would be unprotectable as a matter of law);

It appears that the allegedly copied portion is far more complex than other routines the Copyright Office has deemed uncopyrightable, like a “celebratory dance in the endzone” consisting of “a few movements of the legs, shoulders and arms,” or the gesture of using one’s arms to spell out the letters “USA.” Compendium § 805.5(A).

Hanagami plausibly alleged that the four-count portion is a complex, fast-paced series of patterns and movements that involves the whole body and is performed by highly-trained dancers. Even without the rest of the Registered Choreography, the Steps alone could satisfy many of the elements of a choreographic work as defined in the Compendium. See Compendium § 805.2(A)–(F). In any event, it is not up to us at this stage of the litigation to determine the complexity of the Steps. Further discovery and expert testimony may shed more light on this question.