5th Circuit Does It Again: Puts Yet Another Law Already Deemed Unconstitutional Into Effect With No Explanation

Legal Issues

from the the-5th-circuit-is-lawless dept

What the fuck is going on with the 5th Circuit? Last week we wrote about it putting a law into effect just after a district court had laid out why it was unconstitutional (this was about mandatory made up “health warnings” and age verification on adult content websites). This followed on the 5th Circuit doing something similar last year, that caused the Supreme Court to give the 5th a gentle wrist slap (which apparently has ignored the message). In both cases, we highlighted how crazy it is for the appeals court to say “put this law into effect immediately” with zero explanation, especially after the district court judges went into great detail to explain why the law is unconstitutional.

And… here we are again, just one week later. Just last week, Judge Alan Albright (the same judge Alan Albright who is somewhat infamous for touring the country telling patent trolls to file cases in his court, where he is the only judge, leading him to get somewhere around 25% of all patent cases in the country) shot down yet another terrible Texas law (apparently sometimes Judge Albright can get things right).

The law in question is HB 900 which requires public school libraries to hide any materials that snowflake Republicans are scared might teach their kids that gay and trans people exist and are human beings. As highlighted last week by Chris Geidner at LawDork, Judge Albright found the whole thing blatantly in violation of the 1st Amendment as it is textbook prior restraint:

First, the Court holds that READER is a prior restraint. Defendants’ claims that “READER does not prohibit communication of any kind” and “Defendants are not forbidding anyone from any speech,” ECF No. 19 at 29, cannot be squared with TEX. EDUC. CODE § 35.002(b), which states, “A library material vendor may not sell library material rated sexually explicit material . . . .” Once TEA has confirmed that a book’s proper content rating is sexually explicit, all future attempts to sell that book to school districts are prohibited by law. This suffices as an “administrative . . . order[] forbidding certain communications when issued in advance of the time that such communications are to occur.” See Alexander, 509 U.S. at 550. Defendants similarly get things backwards by claiming that this issue revolves around “an amorphous right of students to receive information.” ECF No. 19 at 29. But see Martin v. City of Struthers, 319 U.S. 141, 143 (1943) (“The right of freedom of speech and press has broad scope. . . . This freedom embraces the right to distribute literature and necessarily protects the right to receive it.”) (citation omitted) (emphasis added). For students to receive information, someone must be communicating it— namely, library material vendors such as Plaintiffs. READER’s prior restraint is on this communication. And it is no defense that books with sexually explicit or sexually relevant material can still be published and sold elsewhere, for the Supreme Court in Southeastern Promotions reminds us that “[e]ven if a privately owned forum had been available, that fact alone would not justify an otherwise impermissible prior restraint.” See 420 U.S. at 556; see also Schneider v. State of New Jersey, 308 U.S. 147, 163 (1939) (“[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”). It is therefore clear that READER is a prior restraint.

Answering the second question, like in Bantam Books and Southeastern Promotions, READER is an unconstitutional prior restraint. Because it does not consider whether books have literary, artistic, political or scientific value, as required by the Miller test, it sweeps a wide swath of constitutionally protected works within its definition of “sexually explicit material.” See Miller, 413 U.S. at 24. All books sold to a school district, even unquestionably non-obscene ones, are subject to READER’s rating regime. All books sold (or that have been sold) to a school district, even ones without a prior judicial determination of obscenity, are at risk of being labelled sexually explicit, either by the vendor or by the TEA. And, as explained supra Section III.B.4.a, READER nowhere mandates that either library material vendors or TEA evaluate books under Miller’s third prong. Such a regime is far too broad to fit within obscenity as a “narrowly defined exception[]” to the rule against prior restraints. See Se. Promotions, 420 U.S. at 559. And also like in Bantam Books and Southeastern Promotions, READER provides no opportunity for judicial review of the State’s final determinations. Indeed, booksellers have no opportunity to challenge the State’s “corrected” ratings or decision to ban them from selling books to public schools before the TEA, let alone a judicial body. In such circumstances, READER effectively makes TEA’s ratings final, and unappealable, which is unconstitutional. See Freedman, 380 U.S. at 58 (“[T]he requirement [of advance submission of films] cannot be administered in a manner which would lend an effect of finality to the censor’s determination whether a film constitutes protected expression.”).

The ruling is 59 pages with tons of careful details into how this law is unconstitutional and cannot go into effect.

A week later, and the 5th Circuit’s response is “put it into effect immediately” with the following explanation:

That’s it. That’s the whole damn thing.

The 5th Circuit is a lawless circuit.

This is the same thing it did last week with an “administrative stay.” The whole freaking point of “administrative stays” in the 5th Circuit is to temporarily leave in place the “status quo” so that the court can be fully briefed and make a decision. But in both of these cases, the court is using them for the opposite purpose. Rather than keeping in place the status quo in order to have time to be properly briefed, the lawless 5th Circuit is saying “let this law that has been credibly deemed unconstitutional go into effect immediately, and we’ll review the details later.”

That is, to put it mildly, fucking crazy.

Filed Under: 1st amendment, 5th circuit, alan albright, book banning, free speech, hb 900, libraries, prior restraint, school libraries, texas

AMC Defeats Liberty Tax Service Over Supposed Depiction In ‘Better Call Saul’

Trademark

from the death-and-taxes dept

A little over a year ago, Liberty Tax Service filed a trademark and defamation lawsuit against AMC. At issue was the depiction of a shady tax prep company run by con-men in the final season of the hit show Better Call Saul. In the show, the name of the tax prep company is “Sweet Liberty Tax”, run out of a trailer in the middle of the desert, with branding that included the use of the Statue of Liberty. Liberty Tax likewise uses Lady Liberty, typically by employing people to stand outside of its storefronts in costume, waving around signs to get people to come in for tax services. Liberty Tax claimed the show ripped off its name and branding, while also claiming that the negative connotation of the fictional tax company would either confuse the public into thinking that the real life company was itself shady, or that the company had some association with the depiction in the show.

“We were frankly shocked at the similarities between not only the name but the logo, the imagery; what we call the trade dress, frankly,” said Liberty Tax Service’s representing attorney Peter Siachos, partner with Gordon & Rees.

The federal lawsuit filed in New York claims Better Call Saul ripped off the trademarked name, look, and an inflatable Statue of Liberty that many Americans associate with Liberty Tax Service simply by adding the word “sweet” in front of the name. “They chose liberty, they chose the patriotic imagery, they chose the Statue of Liberty, and Liberty Tax has a trademark that gives it an exclusive use of the Statue of Liberty icon connecting with tax preparation services,” said Siachos.

The suit was questionable, in other words. The public knew they were watching a fictional show about fictional people and fictional companies. Confusion of association was never really a thing. Add to all of that the fact that the First Amendment protects the kind of artistic speech that the show was engaged in and you had all the hallmarks of a lawsuit destined for dismissal.

And that is exactly what has now happened. A Manhattan court has granted AMC’s motion to dismiss the suit, noting over the course of 30 pages that Liberty Tax Services failed to offer any real evidence that there was or could be confusion between the fictional depiction of a differently named company and the real life tax prep corporation.

U.S. District Judge Paul Gardephe in Manhattan ruled in favor of AMC Networks (AMCX.O) and Sony Pictures Television (6758.T) over the depiction of “Sweet Liberty Tax Services” in an April 2022 episode. Gardephe said Liberty Tax offered no “particularly compelling” allegations that viewers would be confused into thinking Sweet Liberty was one of its more than 2,500 offices.

The court’s decision, embedded below, takes the claims through the Rogers test. Seeing the court’s analysis on each prong is useful, but you can get a taste of how the court is viewing Liberty Tax’s claims by looking at the final prong, in which the company claims AMC’s use will have a negative impact on the public’s perception of the quality of the real life company’s service. After pointing out that the “products” each company is making in this case aren’t in the same marketplace at all, the court then moves on to Liberty Tax’s complaint that AMC is causing the public to “link Liberty Tax’s Trademarks and Trade Dress to inferior quality services and/or portray Liberty Tax’s marks and services in an unwholesome or unsavory context.” From the court document:

Plaintiff has not pled facts suggesting that viewers of the Show will not understand that “Sweet Liberty Tax Services” is a fictional business operated by fictional characters in a work of fiction.

And because this is an artistic work we’re talking about, the First Amendment applies with hefty weight.

So the case is dismissed. Liberty Tax has made some noises about looking to appeal the ruling, but it really should only do so at this point if it can find actual examples of confusion in the public to buttress its argument. After all, the episodes in question aired over a year ago. Were there to be any legitimacy to Liberty Tax’s concerns, surely they would have shown up in real world examples by now.

Filed Under: better call saul, likelihood of confusion, trademark
Companies: amc, liberty tax service

Daily Deal: The A to Z Cyber Security & IT Certification Training Bundle

Deals

from the good-deals-on-cool-stuff dept

The A to Z Cyber Security & IT Certification Training Bundle has 12 courses focusing on foundational IT skills. Courses cover penetration testing, beginner cybersecurity techniques, ethical hacking, and more. The bundle is on sale for $46.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Authors Guild, Jealous Of Other Terrible Author Lawsuits Against AI, Decides To Join In The Party

Copyright

from the high-school-english-infringes? dept

It’s been eight years since the Authors Guild was thoroughly and totally embarrassed by losing its big lawsuit against Google over the Google Books scanning project. I guess they’re missing the feeling of embarrassment, as they’ve filed what is effectively the same damn suit against OpenAI over that company’s book scanning.

Now, I know, some folks are going to insist that this is somehow different, that AI makes things different, but if anything, I’d argue that the case against OpenAI is significantly weaker than the one against Google. In the case of Google, the company was actually showing snippets of the works. With OpenAI, its book scanning is only for the sake of training the AI. The AI systems are doing the equivalent of reading the books, but never displaying them, just learning from them.

The process is indistinguishable from how humans learn: they read books, and retain some details, and if asked to produce a summary of the work, or to create a work “in the style of” an author, they do so by taking what they’ve learned and producing an entirely new work. That’s all that OpenAI does as well. And unless we’re going to say that reading a book and producing a book report is infringing, then this case seems particularly pointless.

Now, this isn’t the first lawsuit by authors against OpenAI. We covered another one back in July, but rather than just a random list of authors and a desire to turn it into a class action, this new lawsuit is by the Authors Guild itself, and has a ton of big names, including John Grisham, Mary Bly, George Saunders, Scott Turow, Jonathan Franzen, and George R.R. Martin.

It’s not surprising that some of these authors are angry. Scott Turow (who had been a lawyer) used to run the Authors Guild, and was the architect of its failed attack on Google’s book scanning effort. He should have learned his lesson, but if we’ve learned anything over it’s the last decade it’s that Scott Turow’s hatred for the internet knows no bounds.

Some of the other authors you wish would be a bit more circumspect before going down this path.

Of course, with copyright law, the end result is always somewhat up in the air. Judges all too often fall under the sway of big names whining about their “lost money,” and are willing to ignore the text and limitations of copyright law for a chance to make the richest of the rich authors even wealthier.

But, this is a terrible lawsuit and should lose, and the Authors Guild should be embarrassed again. Everything about the complaint is dumb. The Authors Guild is somewhat famous for only looking out for the interests of its biggest name authors (and, bizarrely, publishers), and screwing over smaller authors. And you can see that in the complaint, which literally claims that without the authors suing here, OpenAI would have no product at all (which is just nonsense):

Unfairly, and perversely, without Plaintiffs’ copyrighted works on which to “train” their LLMs, Defendants would have no commercial product with which to damage—if not usurp—the market for these professional authors’ works. Defendants’ willful copying thus makes Plaintiffs’ works into engines of their own destruction.

No offense, but if OpenAI could “usurp” the market for these writers, then these writers suck and deserve to have their market usurped. Do these writers not actually believe they can write better stories than a computer?

How embarrassing for them to admit that. Also, as much as I’ve enjoyed some of their works in the past, this lawsuit tells me that these authors are cooked. They are admitting that they’re so uncreative a computer can outwrite them. Fair enough warning: no need to ever read any of their books any more.

Somewhat hilariously, the Authors Guild uses the fact that ChatGPT says that some of its training model may have come from in-copyright works as proof that they did:

ChatGPT itself admits as much. In response to a query submitted to it in January 2023, the chatbot responded: “It is possible that some of the books used to train me were under copyright. However, my training data was sourced from various publicly available sources on the internet, and it is likely that some of the books included in my training dataset were not authorized to be used. … If any copyrighted material was included in my training data, it would have been used without the knowledge or consent of the copyright holder.”

But… ChatGPT doesn’t actually know that. ChatGPT makes up its answers based on probabilistic scores, which is why it’s prone to “hallucinate” false things as true. While, it would only make sense that OpenAI was trained on such things because doing so would be fair use (given multiple court rulings regarding the computer scanning of copyright covered materials, including both search engines and book scanning), the fact that the Authors Guild thinks ChatGPT saying this is some sort of admission shows just how little (i.e., basically nothing) the Authors Guild and its lawyers understand any of this.

The lawsuit, bizarrely, highlights that some Authors Guild members are so bad at writing that they’d already lost jobs to ChatGPT:

An Authors Guild member who writes marketing and web content reported losing 75 percent of their work as a result of clients switching to AI.

Another content writer (unrelated to the Plaintiffs here) told the Washington Post that half of his annual income (generated by ten client contracts) was erased when the clients elected to use ChatGPT instead.

Why would you admit that? Incredibly, in the very next paragraph in the suit, the Authors Guild admits that AI-generated content is terrible. Right after admitting that its own members write worse. Incredible.

Recently, the owner of popular online publications such as Gizmodo, Deadspin, The Root, Jezebel and The Onion came under fire for publishing an error-riddled, AI-generated piece, leading the Writers Guild of America to demand “an immediate end of AI-generated articles” on the company’s properties.

The Authors Guild notes that it holds several copyrights itself, that it’s using in this lawsuit, including for Mignon Eberhart’s books, such as “The Patient in Room 18,” which was published in 1929 and will go into the public domain in less than a year and a half. Also there’s “While the Patient Slept.” That’s a book that was… published in 1930 and will go into the public domain in less than three years. Is the Authors Guild really claiming there’s some giant market for licensing books that are about to go into the public domain? Really?

And, again, like earlier suits, their big complaint is that these AI tools can do the same thing a 7th grade student can:

When prompted, ChatGPT generated an accurate summary of the final chapter of While the Patient Slept, one of the Authors Guild Infringed Works.

Generating a summary is not infringing, guys.

For another author, the complaint is that it generated a made up outline for the next book in a series of books, which is (again) often a task assigned in high school English classes (I remember having to draft an outline for a sequel to 1984, was I infringing too?)

Again, this complaint is pure hubris and greed from authors. The complaint cites a survey saying that authors believe they should be paid for having their works training AI systems, and who isn’t going to say they should get free money for doing nothing? That’s not how you determine if it’s actually infringing, though.

As mentioned above, copyright law is difficult to predict, because judges often go wacky, but this is a horrifically stupid lawsuit, following on some other similar lawsuits. The Authors Guild lost every bit of the Google Books scanning lawsuit, which was found to be transformative and fair use, and the same should be the case here as well.

Filed Under: ai, book reports, chatgpt, christina baker kline, copyright, david baldacci, douglas preston, elin hilderbrand, fair use, generative ai, george r.r. martin, george saunders, jodi picoult, john grisham, jonathan franzen, mary bly, maya shanbhag lang, michael connelly, rachel vail, roxana robinson, scott turow, summarization, sylvia day, transformative, victor lavalle
Companies: authors guild, openai

It’s Beyond Stupid That Robocallers And Lobbyists Have Made Our Voice Networks Almost Unusable

(Mis)Uses of Technology

from the fifty-forth-time's-the-charm dept

It can’t be said often enough: it’s stunning that we’ve let scammers and scumbags hijack the nation’s top voice communications platform. And that we’ve let marketing and telecom industry lobbyists slowly degrade the authority of the one U.S. regulator capable of actually doing something about it.

Every six months or so the FCC comes out with a new plan it insists will finally fix the scourge that is robocalls. Yet the solutions are never quite enough to actually combat robocallers, who now annoy Americans roughly 5.1 billion times every month. We’ve noted repeatedly why robocalls are a problem that somehow never gets truly fixed:

• Lobbying by a coalition of industries has routinely led to Supreme Court rulings that have curtailed the FCC’s authority to pursue “scammers” and legitimate companies alike.
• Lobbying has resulted in a paradigm where the discourse fixates on “scammers,” when it’s “legitimate” industries that are routinely the biggest culprits, often using the same exact tactics as scammers to do things like harass heavily-indebted people they know can’t pay.
• The FCC has long lacked the backbone to stand up to telecom giants that for 20 years turned a blind eye on robocalling because they profited from it (and in many cases still do).
• The current system allows the FCC to fine robocallers, but doesn’t give the FCC the authority to actually collect those fines. That falls to the DOJ, which often doesn’t bother. The FCC has repeatedly asked for the authority to collect fines itself, but a corrupt Congress ignores the request, thanks to a prevailing “wisdom,” seeded by industry, that competent regulatory oversight is somehow bad.

Still, the FCC really loves putting on a show to suggest that a fix for the problem is just around the next corner. Like last week, when the FCC finally (after years of pressure) closed a loophole pertaining to voice over IP (VOIP) providers that gave robocallers easy access to U.S. phone numbers. Which scammers then use to spoof their numbers and hide their identities:

“…under rules adopted by the FCC yesterday, VoIP providers will face some extra hurdles. They will have to “make robocall-related certifications to help ensure compliance with the Commission’s rules targeting illegal robocalls,” and “disclose and keep current information about their ownership, including foreign ownership, to mitigate the risk of providing bad actors abroad with access to US numbering resources,” the FCC said.”

To be clear: this is good; it’s just not enough.

Every time you see the FCC do something about robocalls, you can be fairly certain that it’s (1) something people had been pressing them to do for the better part of a decade, (2) probably contains ample loopholes as not to offend the “legitimate” companies that utilize the exact same tactics as scammers, and (3) probably won’t actually stop more agile robocallers from annoying the shit out of you at dinner.

Groups like the National Consumer Law Center (NCLC) have repeatedly issued reports detailing that we can’t fix robocalls until the FCC and Congress find the backbone (you might be waiting a while) to stand up to both scammers and legitimate corporations alike:

“Even when these providers are told—sometimes repeatedly—that they
are transmitting fraudulent calls, they keep doing it, because they are
making money from these calls. And even when they are caught and told
to stop, they are not criminally prosecuted, and the fines that are levied
are rarely collected.”

The robocall problem is usually framed in the press as a story about robocall scammers deftly outmaneuvering bumbling regulators. But that’s only part of the story. The reality is legitimate companies have actively constrained the FCC’s authority to do its job, blocked real reformers from being seated at the agency, and actively purchased the hollow performance that is modern regulatory oversight.

As a result, you often can’t use the fucking phone. Another byproduct of corruption and unchecked lobbying power we’ve somehow normalized over decades of dysfunction.

Filed Under: fcc, phone, regulatory oversight, robocalls, scammers, scams, spam, telecom, voip