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.

A List of Generative Patent Drafting Software

Patent drafting can be very technical, cumbersome, and time-consuming, yet there is no guarantee that your patent will be approved. One may need to file in several countries, thus increasing expenses. Patent drafting AI is filling a real and urgent need to slash patent filing costs to minimum. Removing prohibitive monetary barriers to patent filing is poised to empower inventors to file as many applications for as many patents as they can possibly think of on an ongoing basis. This is good for innovation.

Here is a non-exhaustive list of patent-drafting bots by alphabetical order. We haven’t had the opportunity to test them, so this is not an endorsement. The list excludes software that only features search and research specs:


A useful reading: https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2018-19/january-february/drafting-patent-applications-covering-artificial-intelligence-systems/

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.