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.

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 …

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.

Westlaw and Ross Intelligence Lawsuit Over Gen Ai Goes To Jury Trial

This lawsuit raises the overlooked issue concerning legal databases charging people for money for content that they don’t really own. Anyone who’s been to law school is trained to use Westlaw on a limited academic license, paid for with prohibitive students tuitions, in order to complete research that ultimately is in the public’s interest. Student access to Westlaw opens many doors for employment in the legal trade, because a significant number of law firms cannot afford to pay for Westlaw access, so they rely on interns’ academic access. These paid databases are hurting the public the most. There is no copyright per se on judgments or legislation, or citations. Filed proceedings, except under non-publication orders, are considered public information, which means they should be accessible. For free.

Legal information and trial data shouldn’t be kept behind a paywall

We contend that all legal databases should be free for the public, and by extension free to train large language models. I believe that in this day and age when legislation changes often, with numerous reforms undergoing in a whole brand new world to look forward to, the public should be equipped for free with all the tools traditionally at lawyers disposal, no less to figure out their rights and duties, and become better citizens.

Monetizing a large language model however, that sifts through all this data and answers your questions like a lawyer, is justified, because it will save us thousands of hours of research (if it works at all), will improve access to justice, and will root out frivolous lawsuits. Thomson Reuters is training their own LLM on data they don’t really own, but simply aggregate into databases, they call “proprietary”. And now they want to stop competing LLM’s from training on said databases. For example, CanLII in Canada and some of Soquij also have proprietary elements but remain free for the public for what matters most, namely jurisprudence and caselaw by provision. The parts that are not free yet, such as dockets access, shouldn’t be monetized either. Dockets info is completely free in states like California and in the UK.

It feels like Thomson Reuters wants to stall innovation and monopolize legal LLM’s

Indeed, Thomson Reuters is accusing Ross Intelligence of unlawfully copying content from its legal-research platform Westlaw to train a competing artificial intelligence-based platform. A decision by U.S. Circuit Judge Stephanos Bibas sending the case to a jury sets the stage for what could be one of the first trials related to the “unauthorized” use of data to train AI systems.

When you pay Westlaw a salty hourly fee to access its databases, nothing precludes you from copying this information at will for whatever purpose you need it for, which evidently includes training LLM’s. If anything, there should be more LLM’s training on Westlaw’s databases.

This is very different from tech companies such as Meta Platforms, Stability AI and Microsoft-backed OpenAI facing lawsuits from authors, visual artists and other copyright owners over the use of their work to train the companies’ generative AI software. Authors, artists and copyright owners actually own copyright over their works that have been used without their consent. The same cannot be said about Thomson and Reuters. Nobody gave them a license to make those databases, because a licence is not required in the first place. In theory, anyone or a bot can make such databases by compiling publicly available information.

The issue revolves mainly around the “headnotes” which summarize points of law in court opinions. These are citations extracted from the opinions themselves. They are something of an extremely detailed bullet point deconstruction of the legal analysis. Students do that every day. Another thing about the headnotes, handy as they are, you do need a bot to go through all of them, because they end up taking up more space than the entire judgment. I don’t agree that they are proprietary. I tend to agree with the defendant that they are fair use.

Ross said that the Headnotes material was used as a “means to locate judicial opinions,” and that the company did not compete in the market for the materials themselves. Thomson Reuters responded that Ross copied the materials to build a direct Westlaw competitor.

The court decided to leave up to the jury to decide fair use and other questions, including the extent of Thomson Reuters’ copyright protection in the headnotes. He noted that there were factors in the fair-use analysis that favored each side. The judge said he could not determine whether Ross “transformed” the Westlaw material into a “brand-new research platform that serves a different purpose,” which is often a key fair use question.

Yes, but it is not the only factor. Fair use analysis would apply if Westlaw had copyright over the headnotes to begin with. I think the headnotes are already fair use in a sense if we accept that judgments and papers are protected by copyright in theory, even though unenforceable in practice. I don’t see why you would need to prove transformative use when training models on someone else’s fair use material in a context where there is no economic right in the core content to begin with. It is indeed an interesting case.

“Here, we run into a hotly debated question,” judge Bibas said. “Is it in the public benefit to allow AI to be trained with copyrighted material?”

I would answer the question with a resounding: YES.

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