I can’t believe this, but it happened again. Almost exactly a decade ago, Tim Cushing wrote about a bonkers story out of the UK in which a passport applicant who’s middle name was “Skywalker” was denied the passport due to purported trademark or copyright concerns. The question that ought to immediately leap to mind should be: wait, nothing about a name or its appearance on a passport amounts to either creative expression being copied, nor use in commerce, meaning that neither copyright nor trademark law ought to apply in the slightest.

And you would have thought that coming out of that whole episode, proper guidance would have been given to the UK’s passport office so that this kind of stupidity doesn’t happen again. Unfortunately, it did happen again. A UK woman attempted to get a passport for her daughter, who she named Khaleesi, only to have it refused over the trademark for the Game of Thrones character that held the same fictional title.

Lucy, 39, from Swindon in Wiltshire, said the Passport Office initially refused the application for Khaleesi, six.

Officials said they were unable to issue a passport unless Warner Brothers gave permission because it owned the name’s trademark. But the authority has since apologised for the error.

“I was absolutely devastated, we were so looking forward to our first holiday together,” Lucy said.

While any intellectual property concerns over a passport are absolutely silly, I would argue that trademark law makes even less sense here than copyright would. Again, trademark law is designed specifically to protect the public from being confused as to the source of a good or service in commerce. There is no good or service nor commerce here. Lucy would simply like to take her own child across national borders. That’s it. Lucy had to consult with an attorney due to this insanity, which didn’t initially yield the proper result.

After seeking legal advice, her solicitors discovered that while there is a trademark for Game of Thrones, it is for goods and services – but not for a person’s name.

“That information was sent to the Passport Office who said I would need a letter from Warner Brothers to confirm my daughter is able to use that name,” she said.

This amounts to a restriction on the rights and freedoms of a child in a free country as a result of the choice their parent’s made about their name. Whatever your thoughts on IP laws in general, that simply cannot be the aim of literally any of them.

Now, once the media got a hold of all of this, the Passport Office eventually relented, said it made an error in denying the passport, and has put the application through. But even the government’s explanation doesn’t fully make sense.

Official explained there had been a misunderstanding and the guidance staff had originally given applies only to people changing their names.

“He advised me that they should be able to process my daughter’s passport now, ” she said.

Why would the changing of a name be any different? My name is my name, not a creative expression, nor a use in commerce. If I elect to change my name from “Timothy Geigner” to “Timothy Mickey Mouse Geigner”, none of that equates to an infringement of Disney’s rights, copyright nor trademark. It’s just my name. It would only be if I attempted to use my new name in commerce or as part of an expression that I might run afoul of either trademark or copyright law.

What this really is is the pervasive cancer that is ownership culture. It’s only with ownership culture that you get a passport official somehow thinking that Warner Bros. production of a fantasy show means a six year old can’t get a passport.

Source: UK Once Again Denies A Passport Over Applicant’s Name Due To Intellectual Property Concerns | Techdirt

It sounds absolutely batty that there is a strong, bipartisan push to lock up aspects of our law behind copyright. But it’s happening. Even worse, the push is on to include this effort to lock up the law in the “must pass” National Defense Authorization Act (NDAA). This is the bill that Congress lights up like a Christmas tree with the various bills they know they can’t pass normally, every year.

And this year, they’re pushing the Pro Codes Act, a dangerous bill to lock up the law that has bipartisan support.

[…]

There are lots of standards out there, often developed by industry groups. These standards can be on all sorts of subjects, such as building codes or consumer safety or indicators for hazardous materials. The list goes on and on and on. Indeed, the National Institute of Standards and Technology has a database of over 27,000 such standards that are “included by reference” into law.

This is where things get wonky. Since many of these standards are put together by private organizations (companies, standards bodies, whatever), some of them could qualify for copyright. But, then, lawmakers will often require certain products and services to meet those standards. That is, the laws will “reference” those standards (for example, how to have a building be built in a safe or non-polluting manner).

Many people, myself included, believe that the law must be public. How can the rule of law make any sense at all if the public cannot freely access and read the law? Thus, we believe that when a standard gets “incorporated by reference” into the law, it should become public domain, for the simple fact that the law itself must be public domain.

[…]

Two years ago, there was a pretty big victory, noting that his publishing of standards that are “incorporated by reference” is fair use.

But industry standards bodies hate this, because often a large part of their own revenue stream comes from selling access to the standards they create, including those referenced by laws.

So they lobbied Congress to push this Pro Codes Act, which explicitly says that technical standards incorporated by reference retain copyright. To try to stave off criticism (and to mischaracterize the bill publicly), the law says that standards bodies retain the copyright if the standards body makes the standard available on a free publicly accessible online source.

[…]

They added this last part to head off criticism that the law is “locked up.” They say things like “see, under this law, the law has to be freely available online.”

But that’s missing the point. It still means that the law itself is only available from one source, in one format. And while it has to be “publicly accessible online at no monetary cost,” that does not mean that it has to be publicly accessible in an easy or useful manner. It does not mean that there won’t be limitations on access or usage.

It is locking up the law.

But, because the law says that those standards must be released online free of cost, it allows the supporters of this law, like Issa, to falsely portray the law as “enhancing public access” to the laws.

That’s a lie.

[…]

t flies in the face of the very fundamental concept that “no one can own the law,” as the Supreme Court itself recently said. And to try and shove it into a must pass bill about funding the military is just ridiculously cynical, while demonstrating that its backers know it can’t pass through regular process.

Instead, this is an attempt by Congress to say, yes, some companies do get to own the law, so long as they put up a limited, difficult to use website by which you can see parts of the law.

Library groups and civil society groups are pushing back on this (disclaimer: we signed onto this letter). Please add your voice and tell Congress not to lock up the law.

Source: Congress Wants To Let Private Companies Own The Law | Techdirt

The complaints against OpenAI and Microsoft in New York Times Company v. Microsoft Corporation and Daily News, LP v. Microsoft Corporation include multiple theories––for instance, vicarious copyright infringement, contributory copyright infringement, and improper removal of copyright information. Those theories, however, are ancillary to both complaints’ primary cause of action: direct copyright infringement. While the defendants’ motions to dismiss focus primarily on jettisoning the ancillary claims and acknowledge that “development of record evidence” is necessary for resolving the direct infringement claims, they nonetheless offer insight on how the direct infringement fight might unfurl.

Direct Infringement Via Inputs and Outputs: The Daily News plaintiffs claim that by “building training datasets containing” their copyrighted works without permission, the defendants directly infringe the plaintiffs’ copyrights. Inputting copyrighted material to train Gen AI tools, they aver, constitutes direct infringement. Regarding outputs, the Daily News plaintiffs assert that “by disseminating generative output containing copies and derivatives of the” plaintiffs’ content, the defendants’ tools also infringe the plaintiffs’ copyrights. The Daily News’s input (illicit training) and output (disseminating copies) allegations track earlier contentions of The New York Times Company.

Fair Use Inputs and “Fringe” Outputs: OpenAI’s June arguments in Daily News frame “the core issue”––one OpenAI says “is for a later stage of the litigation” because discovery must first generate a factual record––facing New York City-based federal judge Sidney Stein as “whether using copyrighted content to train a generative AI model is fair use under copyright law.” Fair use, a defense to copyright infringement, involves analyzing four statutory factors: 1) the purpose and character of the allegedly infringing use; 2) the nature of copyrighted work allegedly infringed upon; 3) the amount of the copyrighted work infringed upon and whether the amount, even if small, nonetheless goes to the heart of the work; and 4) whether the infringing use will harm the market value of (or serve as a market substitute for) the original copyrighted work.

So, how might ingesting copyrighted journalistic content––the training or input aspect of the alleged infringement––be a protected fair use? Microsoft argues in Daily News that its “and OpenAI’s tools [don’t] exploit the protected expression in the Plaintiffs’ digital content.” (emphasis added). That’s a key point because copyright law does not protect things like facts, “titles, names, short phrases, and slogans.” OpenAI asserts, in response to The New York Times Company’s lawsuit, that “no one . . . gets to monopolize facts or the rules of language.” Learning semantic rules and patterns of “language, grammar, and syntax”––predicting which words are statistically most likely to follow others––is, at bottom, the purpose of the fair use to which OpenAI and Microsoft say they’re putting newspaper articles. They’re ostensibly just leveraging copyrighted articles “internally” (emphasis in original) to identify and learn language patterns, not to reproduce the articles in which those words appear.

More fundamentally, OpenAI and Microsoft aren’t attempting to disseminate copies of what copyright law is intended to incentivize and protect––“original works of authorship” and “writings.” They aren’t, the defendants claim, trying to unfairly produce market substitutes for actual newspaper articles.

How, then, do they counter the newspapers’ output infringement allegations that the defendants’ tools sometimes produce verbatim versions of the newspapers’ copyrighted articles? OpenAI contends such regurgitative outcomes “depend on an elaborate effort [by the defendants] to coax such outputs from OpenAI’s products, in a way that violates the operative OpenAI terms of service and that no normal user would ever even attempt.” Regurgitations otherwise are “rare” and “unintended,” the company adds. Barring settlements, courts will examine the input and output infringement battles in the coming months and years.

Source: Inputs, Outputs, and Fair Uses: Unpacking Responses to Journalists’ Copyright Lawsuits | American Enterprise Institute – AEI

Even though parents insist that it is good and right to share things, the copyright world has succeeded in establishing the contrary as the norm. Now, sharing is deemed a bad, possibly illegal thing. But it was not always thus, as a fascinating speech by Ryan Cordell, Associate Professor in the School of Information Sciences and Department of English at the University of Illinois Urbana-Champaign, underlines. In the US in the nineteenth century, newspaper material was explicitly not protected by copyright, and was routinely exchanged between titles:

Nineteenth-century editors’ attitude toward text reuse is exemplified in a selection that circulated in the last decade of the century, though often abbreviated from the version I cite here, which insists that “an editor’s selections from his contemporaries” are “quite often the best test of his editorial ability, and that the function of his scissors are not merely to fill up vacant spaces, but to reproduce the brightest and best thoughts…from all sources at the editor’s command.” While noting that sloppy or lazy selection will produce “a stupid issue,” this piece claims that just as often “the editor opens his exchanges, and finds a feast for eyes, heart and soul…that his space is inadequate to contain.” This piece ends by insisting “a newspaper’s real value is not the amount of original matter it contains, but the average quality of all the matter appearing in its columns whether original or selected.”

Material was not only copied verbatim, but modified and built upon in the process. As a result of this constant exchange, alteration and enhancement, newspaper readers in the US enjoyed a rich ecosystem of information, and a large number of titles flourished, since the cost of producing suitable material for each of them was shared and thus reduced.

That historical fact in itself is interesting. It’s also important at a time when newspaper publishers are some of the most aggressive in demanding ever stronger – and ever more disproportionate – copyright protection for their products, for example through “link taxes”. But Cordell’s speech is not simply backward looking. It goes on to make another fascinating observation, this time about large language models (LLMs):

We can see in the nineteenth-century newspaper exchanges a massive system for recycling and remediating culture. I do not wish to slip into hyperbole or anachronism, and will not claim historical newspapers as a precise analogue for twenty-first century AI or large language models. But it is striking how often metaphors drawn from earlier media appear in our attempts to understand and explain these new technologies.

The whole speech is well worth reading as a useful reminder that the current copyright panic over LLMs is in part because we have forgotten that sharing material and helping others to build on it was once the norm. And despite blinkered and selfish views to the contrary, it is still the right thing to do, just as parents continue to tell their children.

Source: Sharing material used to be the norm for newspapers, and should be for LLMs – Walled Culture