1 00:00:04,417 --> 00:00:10,697 It's entertainment law update episode 170 mix for January 29 2025. 2 00:00:10,640 --> 00:00:16,880 Music. 3 00:00:16,837 --> 00:00:23,257 Hi again everybody and welcome to another episode of Entertainment Law update from Los Angeles California I'm Gordon Firemark, 4 00:00:24,057 --> 00:00:32,277 And from the Dallas Fort Worth metroplex I'm Tamara Bennett and this is our podcast about entertainment law where each month we pull together a round up of 5 00:00:32,564 --> 00:00:38,564 Legal and business news stories around the entertainment industry and share our opinions and commentary and analysis, 6 00:00:39,333 --> 00:00:43,533 And try to have a little fun with it too. So, Tamara, how are things with you? What's new? 7 00:00:44,312 --> 00:00:50,972 Oh, all is good. Do you know if if folks missed our previous into the year episode, I am now a full, 8 00:00:51,477 --> 00:01:01,677 3 weeks plus into the the what new law firm I joined Harper Bates LLP in Dallas so super excited to be kicking off the New Year with a new firm. 9 00:01:04,882 --> 00:01:15,682 Over here in in where I live in Santa Clarita California people have probably heard the name of that town in the last week or so because a week ago last Wednesday we 10 00:01:15,829 --> 00:01:24,949 We had to evacuate our home due to a threat of fire. Fortunately, that fire did not materialize as a real threat to our family and our house but it was 11 00:01:25,038 --> 00:01:34,758 Tensome scary and we were actually originally supposed to be recording last Wednesday but yes and you know the 12 00:01:34,814 --> 00:01:39,854 Risk the evacuation warnings in orders did disrupt our lives a bit but, 13 00:01:40,738 --> 00:01:50,878 In the scheme of things we're we're doing okay and I do want to give a shout out after the fires that we've seen here in Los Angeles I know there are a few friends of the show who have. 14 00:01:52,297 --> 00:01:58,897 They were affected by the Palisades fire lost their homes and things so I'm not going to call up my name but we're thinking of your friends and, 15 00:01:59,373 --> 00:02:09,153 You know hope that your able to make the most of what's available for recovery and insurance in those kinds of things and get your lives back on track with Lee and with as little, 16 00:02:09,662 --> 00:02:18,602 Trouble as possible. So, yeah and I'm just going to also say if any of our listeners, viewers, friends, and colleagues work. 17 00:02:19,160 --> 00:02:27,620 End the music business in pretty much any way, shape, or form. Music hairs which is the nonprofit. 18 00:02:28,474 --> 00:02:37,714 Organization for the recording academy of the Grammy's has money available and I believe it's a fairly simple process to 19 00:02:37,983 --> 00:02:51,903 Access the funds that are available. Yeah. For folks who are working full time in the music business. In in a variety of capacities and you do not have to be a member of the recording academy to apply and receive, 20 00:02:52,582 --> 00:02:53,422 Funding from them 21 00:02:53,683 --> 00:03:03,223 Oh that's great to know yeah I know there's lots of other resources available but that one particular for our friends and colleagues that work in the music industry yeah you know that's a great transition in 22 00:03:03,334 --> 00:03:13,174 In our March episode we will be participating in something called podcast thon where I met this gentleman who who launched this in France and Europe, 23 00:03:13,791 --> 00:03:20,691 Couple of years ago now but he's rounding up podcast all who will during the same week of the year participate in in, 24 00:03:21,473 --> 00:03:30,353 Asking for donations fundraising for their charities of choice and I think our plan is that music cares will be the charity we choose for. 25 00:03:31,376 --> 00:03:35,096 For us and we'll ask anybody who wants to make a donation 26 00:03:35,436 --> 00:03:46,896 You don't have to wait by the way until that's right you don't have to wait. Yes. I think is the is the domain, right? So. It's just one C. 27 00:03:47,219 --> 00:03:48,579 Some music 28 00:03:48,867 --> 00:03:57,387 A R E S or muse cares so it's just one C between music and cares yes and I know, 29 00:03:58,428 --> 00:04:02,568 Yeah I'm sure on the telecast for the Grammy Awards on, 30 00:04:03,460 --> 00:04:11,020 This coming night. Yes, I'm afraid I'm not in LA for all the festivity this year. That that information will be, 31 00:04:11,895 --> 00:04:21,795 Broadcast a light as far as participating as well as you and I both know there are many other boots on the ground charities. Absolutely. Available in resources. So. 32 00:04:23,274 --> 00:04:23,814 Yeah. 33 00:04:24,809 --> 00:04:38,529 So please do donate early and often as they say. Yeah. Yes. Do your too. We can we can throw it. We can throw a link in here in the show notes. We don't have to wait till March either. We can write. So we can add that. 34 00:04:38,992 --> 00:04:40,612 Indeed. Indeed. Well, 35 00:04:40,720 --> 00:04:48,760 It being january we have a new president in office and the day before he took office well, 36 00:04:49,993 --> 00:04:55,933 Disappeared it went down for a while and interestingly came back up but the the ban 37 00:04:56,114 --> 00:05:05,234 Is our topic of our first story today the case is called TikTok versus Garland in the United States Supreme Court brought up from the DC circuit. 38 00:05:06,500 --> 00:05:13,400 TikTok is the social media platform you probably know it. It hosts short videos and it's owned by bite dance accompany that has 39 00:05:13,660 --> 00:05:19,060 Chinese ownership interests and and obligation to disclose data to the Chinese government. 40 00:05:19,610 --> 00:05:26,390 Well the congress in the US passed a law last April which required TikTok as well as other Chinese company on software, 41 00:05:27,631 --> 00:05:29,671 Services to be D platformed 42 00:05:30,107 --> 00:05:37,067 And access to the United States stopped in order to secure the data of American citizens on the basis of national security. 43 00:05:37,984 --> 00:05:46,204 And if the entities were sold to a company that didn't have those Chinese ownership interests like an American owned company or owned by 44 00:05:46,401 --> 00:05:53,661 People in the US this would not then apply and the exact reasoning of the you know for the band is 45 00:05:53,675 --> 00:06:03,875 Basically been undisclosed. The public hasn't been told exactly why this is an national security threat. But essentially the summary is it's just securing American's data. 46 00:06:07,817 --> 00:06:18,257 You know, just because they're old enough to be on social media 13 years old on TikTok, it doesn't mean that they won't become president or subject to blackmail or foreign interference later on and 47 00:06:18,584 --> 00:06:23,804 You know, anyway, there's some question about how serious of a national security threat it is. 48 00:06:24,291 --> 00:06:37,611 But there are lots of creators in the various segments that earn a living using TikTok as well as TikTok has its own you know TikTok store and so anyway a bunch of creators and TikTok itself filed suit 49 00:06:37,804 --> 00:06:41,524 Trying to bar enforcement of the law on first Amendment grounds, 50 00:06:42,521 --> 00:06:47,741 And as the court made it was the case made its way through the courts the 51 00:06:47,850 --> 00:06:56,610 The lower courts consistently ruled in favor of the federal government that national security I guess is a compelling governmental interest in the the van, 52 00:06:57,210 --> 00:07:04,110 on Chinese ownership is like yes narrowly tailored as the the thinking on this and so why did I think it's 53 00:07:04,234 --> 00:07:14,194 It's just it's more than just the Chinese ownership. I believe the words are control of a foreign adversary. Yes. Or controlled by a foreign adversary. So. 54 00:07:15,648 --> 00:07:21,628 It could be more than China. Yeah. Because I guess USS many has a few. 55 00:07:21,717 --> 00:07:31,437 For an adversaries. Right. Cuz i was like, well, what if China sells it to Russia? Oh, Florida. We're still good. We're still good. Okay, I'm sorry. No. 56 00:07:32,772 --> 00:07:37,692 And the court assumes in its analysis without deciding that the law 57 00:07:38,020 --> 00:07:46,180 Without while having no direct impact on speech still significantly impacts persons and their speech maintenance subject to a first amendment analysis. 58 00:07:47,229 --> 00:07:58,149 Notably just as so to my or in her concurrence argue that existing case law supports the assumption and that it should have been an item in the courts ruling that was more explicitly addressed. Yes, it's a first amendment issue. 59 00:07:58,527 --> 00:08:10,167 So, the court determine that had to determine whether the law fell under strict scrutiny for purposes of the analysis and the court said it did not. The reasoning for this is that the law was effectively content neutral, 60 00:08:10,680 --> 00:08:15,480 And for a content neutral purpose intermediate scrutiny is the right, 61 00:08:16,964 --> 00:08:29,684 Standard of of review so gorsuch in his concurrent opinion stated that he believes law would also have survived strict scrutiny as do I despite it being a very dramatic. 62 00:08:31,421 --> 00:08:40,421 Sweeping kind of a law that so that they said it's content neutral didn't prohibit any specific messages but rather this specific platform, 63 00:08:40,910 --> 00:08:47,630 And the ownership side of it. So, while the court acknowledge that the targeted impact on Tic Tac TikTok 64 00:08:48,003 --> 00:09:00,663 Excuse me specifically tic tac is a mincer fine ticktock so specifically that alone didn't make it biased as to content of speech, 65 00:09:01,183 --> 00:09:09,403 So the portrait reasoning for the law being national security the court said yeah that that still content neutral, 66 00:09:10,068 --> 00:09:15,648 A content New Teresa despite being under under inclusive as protecting data. 67 00:09:16,619 --> 00:09:24,539 With respect to people and other country companies in from other countries and things so the data could still be collected sold or otherwise transferred you know all that but 68 00:09:24,697 --> 00:09:31,597 Nevertheless the holding of the court is that the law is constitutional and the band is valid. So 69 00:09:31,872 --> 00:09:36,672 Immediately impact seems to have been mitigated because the new president Mister Trump, 70 00:09:37,512 --> 00:09:47,712 issued an executive order on his first day in office to postpone the enforcement of the law for 75 days from his inauguration on January 20 so 71 00:09:48,067 --> 00:09:53,827 Ticktock may still go offline in March unless there's been AA 72 00:09:54,125 --> 00:10:00,365 Transfer and the company from the Chinese ownership entrance. So, any chance, 73 00:10:01,282 --> 00:10:12,802 If you have the app you can you can use it you can't go download it and I I saw what statement Apple the Apple Store posted on assuming that Google Play Store posted something very similar as, 74 00:10:13,408 --> 00:10:16,648 It's not available if you have it you can use it, 75 00:10:17,465 --> 00:10:28,145 And I think if you came in from another country you might still be able to use it and I'm sure there are people who have sort short circuited around a VPN or something else to get access, 76 00:10:28,798 --> 00:10:34,658 The penalties are against the apple and the Google Play and the Oracle. 77 00:10:35,329 --> 00:10:43,129 If enforcement really starts I think it's $5000 per download $5000 per user I mean it's a substantial. 78 00:10:44,907 --> 00:10:48,687 Penalty and and I think the other thing a court held was that the. 79 00:10:50,290 --> 00:10:56,950 The law does not violate the petitioners first amendment rights. Right. So, 80 00:10:57,447 --> 00:11:08,187 Hey guess there's kind of this between what the statue is what the law is the rights related and then the rights related to the petitioners being, 81 00:11:08,853 --> 00:11:16,473 The users of TikTok and well providers. Yeah. So, you know, the, 82 00:11:17,171 --> 00:11:22,631 The band sort of went into effect at midnight on the 19th and it was sort of, 83 00:11:23,716 --> 00:11:30,616 The service was back up and running if you had the app already on your devices it would start it started working again 84 00:11:30,918 --> 00:11:34,158 Within I think 6 or 8 hours of the of the 85 00:11:34,536 --> 00:11:44,136 Initial thing. So, you know, it was ended, you know, the the news on the web was, oh, wait, the sky is falling. Tick tock is down. Not all this. And. 86 00:11:46,086 --> 00:11:53,766 You know, I tried to use it. I was traveling on Sunday. I tried to log in to TikTok and nothing happened and then, when I got home later that night, it was 87 00:11:54,035 --> 00:12:05,435 Working but I have number of students who had deleted it off their phones for whatever reason they had used in a while and it was often they can't oh yeah you can't because mine isn't current on my phone and I 88 00:12:05,549 --> 00:12:08,309 Decided today to see if I could and 89 00:12:08,601 --> 00:12:17,241 Hey platform yesterday. 90 00:12:22,680 --> 00:12:26,520 Interestingly though you know the analogy you ask a question whether or not 91 00:12:26,660 --> 00:12:33,800 The first amendment rights of the users have been violated and I would say you know this is sort of like, 92 00:12:35,176 --> 00:12:38,836 A community rezoning and no longer allowing billboards 93 00:12:39,020 --> 00:12:53,060 In a particular area or a good example Professor Professor Firemark or maybe at your local mall and you know, for some reason, there's AA little ordinance that says, no, no bulletin boards in, you know, facing the 94 00:12:53,315 --> 00:13:04,535 The park or something like that. So, there may still be bowling boards. It's just not that one's no longer available for you to post your sign on. But I don't think it really in pairs 95 00:13:04,784 --> 00:13:07,124 Speech in a significant enough way that 96 00:13:07,431 --> 00:13:14,751 You know, I and I think it would pass strict scrutiny on the and it's, 97 00:13:15,929 --> 00:13:21,149 Unfortunately, it's diversification. Yeah, for the, for the, for the. 98 00:13:21,141 --> 00:13:30,441 Content creators in talent. Yeah, well, what's interesting is the the cropping up of other services that are sort of like TikTok. Also Chinese. 99 00:13:30,533 --> 00:13:34,893 Interestingly and I presume the law would apply to them as well. 100 00:13:34,893 --> 00:13:45,633 It would just take that's correct because again it goes back to what did I say if it's a foreign adviser. Yeah. So it's broad enough. I think they mentioned. 101 00:13:47,203 --> 00:13:55,063 A dozen handful of specific ones but yeah any foreign adversary so Russia China, 102 00:13:55,944 --> 00:14:08,664 It's going to apply. No. Well, we had Supreme Court action so that that story sort of took priority on the show but as we always do in January, we like to highlight the public domain and and, 103 00:14:09,439 --> 00:14:13,279 January 1 of each year is the year that works from, 104 00:14:14,246 --> 00:14:20,966 I guess 95 years prior falling to the public donation is that correct so yeah so we're talking works 105 00:14:21,222 --> 00:14:28,062 There's a little caveat but works published in 1929. Went PD January 1. 106 00:14:28,298 --> 00:14:37,478 Of 2025. Yeah and some of those are are pretty famous works of literature. So we're getting to this point where you know Hemingway a farewell to arms, 107 00:14:37,931 --> 00:14:43,031 Exploring the experiences of an American ambiance driver in Italy during World War one, 108 00:14:43,683 --> 00:14:56,943 It's a long time since I read that I'm going to look at that again. The sound and the fury by William Faulkner. Modernist letter to the delves into the decline of a family in the American South. Virginia Wolves, a room of one zone. 109 00:14:59,182 --> 00:15:10,162 Lecture essays discussing women's access to education and financial independence so you know here we are 95 years later and and I wish the subject had, 110 00:15:10,672 --> 00:15:23,272 It was past our consciousness. It's not. So. Well, right and we're and we're 95 years later in these works of art are still. American litterture that are studied and dissected in you know, 111 00:15:25,255 --> 00:15:33,355 Films from Alfred Hitchcock's first sound movie Blackmail the Mark's Brothers coconuts their first feature, 112 00:15:35,356 --> 00:15:38,896 Is is also now in the public domain and on the music side. Wow. 113 00:15:39,713 --> 00:15:47,753 I didn't know that that the song singing in the rain preceded the movie singing in the rain. Oh no that either. Yeah. 114 00:15:49,753 --> 00:15:50,753 Brown. 115 00:15:52,415 --> 00:15:58,535 And the and the famous bolero revels ballero I thought that was all older actually then 95 years but, 116 00:15:59,995 --> 00:16:06,955 The that famous repetitive melody crescendo piece of music. So, what else we got there? So, few others? 117 00:16:07,692 --> 00:16:18,552 Yeah, so comics and characters. Bye bye. The second. Give me my spinach. Yes, so Popeye the sailor man was introduced comic strip in 1929. 118 00:16:20,340 --> 00:16:34,620 10 10 the young Belgian reporter these are comics so several of those as well as you know we've already seen in years past much of the Shorelock Homes I think there's some additional Mickey Mouse things, 119 00:16:35,347 --> 00:16:47,527 That are falling, fell into the public domain this year. So, that's kind of comics and characters beyond the lookout as again as we've cautioned those have changed over the years. So, it's only those initial ones that. 120 00:16:48,509 --> 00:16:57,869 Pre 1929 that we're talking about are pre 1930 the one caveat I'd alluded to at the beginning about works, 121 00:16:58,753 --> 00:17:06,313 Falling into the public domain this year is that sound recordings are always a little more special and different in the US. 122 00:17:06,972 --> 00:17:19,272 Because there was no copyright protection for sound recordings federal copyright protection excuse me until 1972 for sound recording so the music modernization act, 123 00:17:20,107 --> 00:17:23,707 Was that in 2019 has it been that long ago 2020 124 00:17:23,869 --> 00:17:37,189 And when it when it passed it added AA 100 year window of protection so the sound recordings that are falling into the public domain are actually from 1920, 125 00:17:37,760 --> 00:17:50,300 Four. Oh, interesting. Have have become public domain this year. Of of interest to me, from variety of reasons, was that Rhapsody in blue? 126 00:17:50,623 --> 00:17:56,663 As performed by George Gershwin that sound recording was released in 1924. Wow. 127 00:17:58,402 --> 00:18:10,522 And is is now in the public domain as well as works by Bessie Smith, Louis Armstrong, Amy Smith, Jelly Roll Morton, from the jazz and blues eras. So, a big 128 00:18:10,707 --> 00:18:22,207 Swath of of sound recordings. As well as classical recordings, rock monophs, piano, concerto number two, enrico caruso, various 129 00:18:22,447 --> 00:18:25,867 Operatic areas so lots of, 130 00:18:26,336 --> 00:18:38,456 Interesting works that are available now and I I put a link into the show notes to the library of congress where these works you know we go why do we have to send in a deposit copy 131 00:18:38,849 --> 00:18:42,509 Well because the library of congress is charged with. 132 00:18:42,999 --> 00:18:48,879 Housing in maintaining and retaining these works and so they are making public. 133 00:18:50,165 --> 00:18:59,465 All of the sound recordings falling that fell into the public domain as of January 1 from that they have access to so all of those, 134 00:18:59,945 --> 00:19:05,465 1924 sound recordings will be available for download now from the library of congress 135 00:19:05,757 --> 00:19:06,297 Nice. 136 00:19:07,017 --> 00:19:15,777 Yeah so in case you wanted to use them so I've listened over the years you know the quality is not always the best but, 137 00:19:16,551 --> 00:19:22,671 If you if if that sound is what you need for your production now you have a 138 00:19:22,870 --> 00:19:31,690 Bigger access to things. And with the development of new technologies AI tools, things like that. It wouldn't be a surprise to hear people releasing 139 00:19:31,963 --> 00:19:32,863 New 140 00:19:32,944 --> 00:19:35,524 Cleaned up versions of these. Oh yeah. 141 00:19:39,624 --> 00:19:44,344 Exactly. And you know opening the door to that so some of the stuff I mean, 142 00:19:44,863 --> 00:19:47,203 You know the Bessie Smith and the Jelly Roll Martin, 143 00:19:48,608 --> 00:19:57,248 And and even you know the the the presidential address from Calvin Coolage the first recorded presidential speech, 144 00:19:58,528 --> 00:19:59,068 Bye. 145 00:19:59,501 --> 00:20:10,781 You know, those there may be a market for those things. So, we'll we'll be interesting to see. They will be in. Yeah, and I think if people are doing period peace audio visual works. 146 00:20:11,735 --> 00:20:14,015 Right. You know, this is a treasure trove. Yeah. 147 00:20:15,318 --> 00:20:22,578 And again just because it might be available on internet archive doesn't mean it's actually yeah. 148 00:20:22,591 --> 00:20:32,431 In the public domain but I think we have some really good parameters now for searching and figuring out and determining dates of publication and, 149 00:20:33,027 --> 00:20:40,927 Anything clearly before 1920 we knows good now we we're kind of putting this line in the sand of the 100 years, 150 00:20:42,225 --> 00:20:53,685 So, yeah. I think it opens up some doors. Yeah, and and the covered office does have a good public domain reference page and so and there's also public domain. Org I think that does a pretty good job of cataloging, 151 00:20:55,441 --> 00:21:00,361 Right and then the the I know we have the link to the the law schools. Yes. Site. 152 00:21:02,444 --> 00:21:11,624 Where you can go in and kind of and you can create your own little calculator. So in in me and I and I can't remember there was one other work that I had read that I had. 153 00:21:11,645 --> 00:21:23,525 Mentioned that oh Buck Rogers the character for Buck Rogers it fell into the public domain but it was already in the public domain because I guess it had been challenged and it was not renewed oh 154 00:21:23,663 --> 00:21:30,383 Okay. Yeah. So, anyway, you still have to do a little bit of digging to make sure you're correct on that. 155 00:21:33,412 --> 00:21:37,552 Published a published when it was originally published and sometimes, 156 00:21:38,328 --> 00:21:48,588 You have to really I I work with over the years I've worked with a variety of Christian music publishers and Christian record labels and I I have multiple 157 00:21:49,013 --> 00:21:57,773 Himals in anytime I find a hymnal from the from late 1800's or early 1900's I snag it app because 158 00:21:57,970 --> 00:22:08,230 Yeah it's really cool but I was my office is being painted today so I was cleaning things off the bookshelf last night and I got a couple of these hymn nolls you know with no front and back cover, 159 00:22:09,475 --> 00:22:18,115 But that's pretty good evidence. When it was published in precise time with the work. So, it's anyway. 160 00:22:18,181 --> 00:22:23,641 I'm I'm nerdy like that if we haven't figured it out. So, 161 00:22:25,112 --> 00:22:28,472 It's cool to be a nerd nowadays apparently too my my nerdy son, 162 00:22:29,442 --> 00:22:41,982 Seems to get a lot of respect from schoolmates and things that's kind of funny. So, anyway, yes. Well, we all know I raised a math late. Yeah, my kid went to school wearing a propeller being today. Literally. 163 00:22:43,675 --> 00:22:51,295 I like it. I like it. No. Anyway, in other copyright news, we have. 164 00:22:55,351 --> 00:23:09,871 Yeah. Is that right? You've had it. Hey man, interesting filmmaker and interesting film member. Yeah. Yeah. So this is a case involving M night channel on and his TV show on Apple TV Plus. 165 00:23:10,133 --> 00:23:17,153 Servant. That came out in I want to say it was 2 years ago maybe three. 166 00:23:19,000 --> 00:23:22,840 He is the executive producer and show runner of that show. 167 00:23:23,897 --> 00:23:29,237 On Apple TV Plus and he what they were sued by Francesco Gregori. 168 00:23:30,907 --> 00:23:43,627 Filmmaker who made a film in 2013 titled The Truth About Emmanuel and the claim was basic copyright infringement her film involved a mother that treated a doll as a living child and, 169 00:23:44,170 --> 00:23:47,770 And had a nanny who also played along. It was a way of 170 00:23:47,996 --> 00:23:56,936 Coping with the loss of her child so she hired this manny and and it takes this supernatural horror route as Shamalin movies are want to do. 171 00:23:57,593 --> 00:24:06,893 At where the realistic baby doll starts to act as a focus for the drama on the plot and there's a cultimate that's implied the babysitter brings the baby delta light all kinds of 172 00:24:07,324 --> 00:24:15,604 You know, that's supernatural stuff. And the truth about Emmanuel is a film where a morning mother uses adult to cope with the loss of her child and a teenage girl. 173 00:24:16,074 --> 00:24:27,954 Believing that the woman is similar to her own mother offers to babysit and discovers that the baby is actually just a doll. So, the argument was effectively that the aspect of morning woman using a baby doll as a coping mechanism 174 00:24:28,173 --> 00:24:36,033 And a babysitter of some sort helping with the process amounted to copyright and fringement and the defendants of course argued 175 00:24:36,284 --> 00:24:48,344 This is idea not expression not protected undercopyright law also no access was proven Shaman hadn't seen the film and this addresses the question of you know why 176 00:24:48,546 --> 00:24:54,186 Wide dissemination does not equal access. Which is something that's important to remember. 177 00:24:54,802 --> 00:25:00,682 And Shaman also argued that a lot of what was at issue was 178 00:25:01,041 --> 00:25:11,781 You know, stock. I guess you could say send us a fair, right? A caretaker fainting or something like that. You know, people faint in movies all the time and in fact, he, I think all he was on the witness stand, he cited, 179 00:25:12,284 --> 00:25:18,704 Four or five Alford Hitchcock movies where character faints at the side of something shocking. You know, so. 180 00:25:19,899 --> 00:25:22,579 Hey NN using a doll, 181 00:25:24,852 --> 00:25:33,072 In this place of a baby is not a that's an idea. Yeah. That is used in many ways whether it's a scary, 182 00:25:33,670 --> 00:25:41,870 Film or something else yeah so and so the jury came back with a unanimous ruling, 183 00:25:43,027 --> 00:25:57,007 Of non infringement. They determine that the plain of it failed to prove access, despite the film being available on iTunes and and those kinds of things and that was a gating item on the verdict form so they didn't have to go any further to find 184 00:25:57,134 --> 00:26:05,594 You know weather or not the material that was similar was idea versus expression and so on so a win for the, 185 00:26:06,829 --> 00:26:08,689 Filmmaker and and the platform, 186 00:26:09,665 --> 00:26:16,745 Yeah so sorry my my brain went too we are the Mitchell's or meet the Mitchell's that Jennifer and, 187 00:26:17,994 --> 00:26:20,554 Jason Sedakus movie. Oh yeah. 188 00:26:22,974 --> 00:26:26,254 Where they have a fake baby with the frog. So anyway. 189 00:26:28,943 --> 00:26:32,463 Okay. Okay. 190 00:26:33,773 --> 00:26:37,733 So interestingly enough I did not so I took a very, 191 00:26:39,893 --> 00:26:48,933 Structured survey of party of one in my house and asked and they didn't know what it was either is it a moke is it a mochi I don't even know how you say it 192 00:26:49,239 --> 00:27:00,279 We had the same experience on the team call the other night when we were sort of finalizing them nobody really was familiar with this term but the the company mock America LLC, 193 00:27:01,050 --> 00:27:04,530 M oh K E. Okay. 194 00:27:07,310 --> 00:27:10,770 International limited both claim rights to the trademark. 195 00:27:12,284 --> 00:27:19,184 Used for their low speed open air vehicles. So, these are sort of like golf carts. They look a little more like the design of a jeep. 196 00:27:19,440 --> 00:27:22,600 But it's a low speed open air. 197 00:27:23,780 --> 00:27:29,660 Thing. So America said that it had acquired certain common law rights from a now defunct company. 198 00:27:30,019 --> 00:27:41,179 While milk international concluded that the mark had been abandoned and that it held priority. Because both of these companies are making these things and calling them milk. So, the US district court, 199 00:27:42,037 --> 00:27:42,457 I don't 200 00:27:42,550 --> 00:27:55,270 Have a list of what court it is. Looks like it's the fourth circuit. Oh, so anyway, the district court ruled that Moch had become a generic term for this category of vehicles and both parties went up and appeal. So. 201 00:27:56,465 --> 00:28:03,065 On appeal to the fourth circuit the legal issues were one whether them had become generic, 202 00:28:03,706 --> 00:28:13,786 And the court looked at weather was perceived by the relevant public as a generic term for open air recreational vehicles and I would render it ineligible for trademark protection 203 00:28:14,148 --> 00:28:14,928 And two 204 00:28:15,230 --> 00:28:25,830 Determination of trademark priority that Courtney to do establish which parties rights were superior if it wasn't eligible than which party had the superior rights. So, 205 00:28:26,382 --> 00:28:33,342 The fourth circuit took took it up and reversed the lower court's ruling and found that mocha had become generic, 206 00:28:34,277 --> 00:28:41,417 The pellet court concluded that the evidence didn't demonstrate sufficiently that the relative public primarily understood, 207 00:28:41,893 --> 00:28:44,893 The term as a generic term. So. 208 00:28:46,719 --> 00:28:58,179 In reaching its decision the court reference to president from Kellogg versus National Biscuit which outlines the standards for determining genericness and the standards are, 209 00:28:58,772 --> 00:29:05,372 One primary significants to the public and court emphasize that the primary test is how it's understood by the relevant public, 210 00:29:07,091 --> 00:29:17,891 And if the if the public primarily understood it at understands it as identifying a category of goods rather than a specific source then it's generic also gave the example shredded wheat 211 00:29:17,956 --> 00:29:32,116 Did anybody know that shredded tweet at one time was a registered trademark? The cereal, just in case. Actually, thought it still was but that's me. Historical use in context, the court 212 00:29:32,243 --> 00:29:40,823 Examine the historical use of the term and whether it originated as a brand name or as a descriptor that's where the example shredded we came up, 213 00:29:41,569 --> 00:29:45,409 Wheat that is shredded and not inherently associated with a single producer. 214 00:29:45,773 --> 00:29:59,753 Also third factor common usage by competitors it's going to be likely to be generic if used by competitors to describe their own product that's right yeah they're infringing so it must be generic as well that sounds like to me but. Right. 215 00:30:00,861 --> 00:30:12,381 And then for a lack of secondary meaning if a term hasn't acquired a secondary meaning that the public associates that term with a particular source or bureau producer then it's more likely to be 216 00:30:12,519 --> 00:30:15,699 Generic. The court in this case found no evidence. 217 00:30:15,949 --> 00:30:26,329 Of of that association and functionality and fair use is another factor to court looked at the need for competitors to use common descriptive terms 218 00:30:26,698 --> 00:30:28,438 To fairly describe their products. 219 00:30:28,894 --> 00:30:36,154 And they noted the granting exclusive trademarks to those terms would hinder competition and create unfair monopolies on ordinary language. 220 00:30:36,861 --> 00:30:50,181 I don't know. I don't think Mocha's ordinary language and maybe weird you and I just aren't the right market for these things. Yeah, maybe we're not. Yeah, they can singers of that but I had never heard of it and maybe it had gone and looked, 221 00:30:52,659 --> 00:30:53,899 I don't know. 222 00:30:55,946 --> 00:31:02,666 Which then also reminded the case to the district court for further proceedings to figure out which party has the 223 00:31:03,031 --> 00:31:14,551 Priority on the trademark to assess the validity of Mocha America's claim of acquiring common law rights into evaluate the abandonment and subsequent priority 224 00:31:14,698 --> 00:31:20,938 Kinda questions. So, the emphasizing importance of establishing clear evidence of use and recognition in the US market. 225 00:31:24,024 --> 00:31:27,984 I wonder what happens if neither of them can show big recognition in the market, 226 00:31:28,984 --> 00:31:40,324 Do you want if it's more than I think? I don't know. You know, and can they really can they can the court determine who the senior user is? Who has priority? Yeah. 227 00:31:41,533 --> 00:31:49,333 Yeah. And I don't think it's a unusual for a bit but you know, there are many brands that can be abandoned. 228 00:31:49,410 --> 00:32:01,830 That and it's more than just a trademark application being abandoned or cancelled. I mean, you have to confirm it's not being used. And again, I would say it doesn't have to be used around the world. It. 229 00:32:01,996 --> 00:32:06,496 Would be used in the US. Yeah. You might have 230 00:32:06,875 --> 00:32:17,375 Trouble if you're the junior ease or trying to enforce it outside the US which this is kind of got a lot of those little intricacies in there I'm sure this is going to get settled before the, 231 00:32:18,361 --> 00:32:22,421 Before we get a court ruling but maybe not so. Alright, who wants to take? 232 00:32:24,083 --> 00:32:34,983 Camera set it's going to settle so we'll have a full drive I think it's going to settle I think it's going to settle yes that's right I'll be wrong and we'll have a full blown trial and we'll be talking about it in 5 years so. 233 00:32:37,168 --> 00:32:44,068 Anyway, it's sort of interesting and and you know, I always thought mocha was sort of a prejourative term used for, you know, someone who is, 234 00:32:45,152 --> 00:32:47,732 Kind of a slub not all put together and 235 00:32:47,844 --> 00:32:54,864 And down on his locking those kinds of things but what do I know? You guys probably not what they want attached. 236 00:32:59,084 --> 00:33:01,344 Anyway. Oh my gosh. 237 00:33:01,798 --> 00:33:10,798 What do we know about are you a South Park fan? No, I I'm we're going to get hate mail aren't we? I have I have 238 00:33:10,827 --> 00:33:14,907 I don't even know if I've ever set down and watched a whole 30 minutes of South Park. 239 00:33:17,087 --> 00:33:23,067 I was sort of surprised to know that in 2019, it was still. It came back. Yeah, yeah. 240 00:33:23,672 --> 00:33:28,332 That it returned or whatever may have happened on that. 241 00:33:31,343 --> 00:33:37,823 Yeah yeah yeah I got it sorry I got too many things ringing that I should have turned off before we started. 242 00:33:39,778 --> 00:33:47,158 So a New York court has ruled in favor of Warner Brothers this is Warner Media direct versus Paramount Global South Park, 243 00:33:47,610 --> 00:33:51,630 Production company MTV and so on and so forth as the defendants, 244 00:33:52,729 --> 00:34:01,009 Allowing the court ruled allowing a lawsuit against pyramid to proceed to trial. This was on a partial motion for some rejuvenate. 245 00:34:01,285 --> 00:34:15,925 Related to a variety of claims that had been brought but it stems from a dispute from a 2019 licensing agreement and which warner secured exclusive US streaming rights to South Park for their HBO Max channel, 246 00:34:16,705 --> 00:34:19,945 reportedly a 500 1 million dollars deal a 247 00:34:19,811 --> 00:34:21,791 It's important to note 248 00:34:22,053 --> 00:34:32,133 I think from a drafting and advising perspective to our clients I practice pointer as we often throw out is this was what's called a binding term she 249 00:34:32,217 --> 00:34:37,137 So it is a binding agreement but it did not. 250 00:34:38,212 --> 00:34:45,232 Drill down and spell out everything that might have been developed into a more robust 251 00:34:45,252 --> 00:34:53,832 Fully executed agreement so on this binding term sheet warner is a lot alleging that paramount breach the agreement, 252 00:34:55,055 --> 00:35:03,215 By diverting certain new south park content and episodes it was a two season deal in which. 253 00:35:04,551 --> 00:35:14,731 Oh I'm sorry Warner assumed that they would get 10 new episodes for each season and they would be able to start run time a certain length and 254 00:35:15,157 --> 00:35:22,537 So that's the assumption they're working under under the agreement and come to find out pyramid, 255 00:35:23,340 --> 00:35:32,520 Went forth and produced some specials and other content related to South Park that they allowed to stream on pyramid and or sister. 256 00:35:33,600 --> 00:35:40,080 Streaming services instead of providing those two Warner Brothers under what Warner says is 257 00:35:40,084 --> 00:35:44,104 Part of this term sheet and a binding term sheet agreement 258 00:35:44,429 --> 00:35:57,009 So Paramount has denied the allegations of breach of contract and Justin Richmond and a variety of other things including tortureous interference and saying it's fully complied with the terms of the term sheet 259 00:35:57,026 --> 00:36:00,426 And they say that this additional new South Port 260 00:36:00,520 --> 00:36:11,560 Contenting question one of which was I think a COVID type special falls outside of the original deal are going at the specials are new programming and we're 261 00:36:11,539 --> 00:36:13,699 Should have been separately negotiated. 262 00:36:14,068 --> 00:36:21,748 And they were separately negotiated with MTV entertainment studios at division of paramount for their broadcast. So, 263 00:36:21,972 --> 00:36:34,032 Hey I think this is something we need to look at as we're doing deals for legacy content what exactly are we acquiring and who can use something else is an exclusive ride or a non exclusive right 264 00:36:34,449 --> 00:36:34,989 And 265 00:36:35,241 --> 00:36:48,321 And maybe it was an exclusive I don't know the terms of this but let's say it was an exclusive deal for content for two seasons of a certain length but they didn't agree to the number of episodes and they didn't block, 266 00:36:49,105 --> 00:36:52,585 You know what I would say is competitive content. 267 00:36:52,832 --> 00:36:55,292 Being broadcast for stream somewhere else. 268 00:36:59,440 --> 00:37:07,540 There's other content that's not an episode. You know, like a special or something like that. Yeah. Those kinds of ambiguities. We we all know that that's what, 269 00:37:08,093 --> 00:37:10,653 Lawsuits are made of. Right? 270 00:37:11,269 --> 00:37:16,309 Right in my first thought is I'm reading this is what about the four corners of the contract. 271 00:37:16,309 --> 00:37:28,069 Well, the court says, ambiguity of the term sheet, parole evidence will likely be necessary in this is me summarizing in, you know, we haven't done enough, discovery. 272 00:37:28,571 --> 00:37:34,631 To figure out what that parole evidence is so the the court denies the motion for some rejectment, 273 00:37:35,832 --> 00:37:40,572 That was just as to the issue of unjust enrichment. It's an interesting read. 274 00:37:41,399 --> 00:37:48,959 As far as weather how overlapping these causes of action are because as you and I both know you will you will 275 00:37:49,150 --> 00:37:57,730 Almost always see it this scenario and then Justin Richmond a breach of contract and potentially a tortureous interference and, 276 00:37:58,369 --> 00:38:10,369 Hey Ian I while I don't believe there was not a copyright infringement claim many times that's thrown in as well so how these overlap and you know what is your recovery when, 277 00:38:11,485 --> 00:38:20,845 These are very similar. So, I don't know. Settle, not settle. It's it's it's going back for more discovery. That's for sure. Yeah. 278 00:38:22,323 --> 00:38:34,803 Maybe trial maybe as you said maybe settlement we we used to you can make a prediction on that one too. No I'm not going to make a prediction on this one. Oh I don't think the studios. I don't think yeah I don't think the studio's like to, 279 00:38:36,115 --> 00:38:38,095 Hey portal discover things. 280 00:38:39,680 --> 00:38:40,460 That's right. 281 00:38:42,580 --> 00:38:44,900 Adverse rulings on the record. 282 00:38:46,828 --> 00:38:52,768 Yeah. Well, interesting. And would it make a difference? I I don't know. In the facts. 283 00:38:54,417 --> 00:39:00,717 If paramount had licensed this footage not to related entity. Oh. So it's, 284 00:39:02,276 --> 00:39:15,896 It mean it feels like was this a fair deal was this fair handshake I mean yeah well 500 1 million dollars deals nothing to sneeze at and and the legal and business affairs folks that worked on it I'm sure thought they were doing things, 285 00:39:16,580 --> 00:39:24,560 You know that's right that they had it nailed down yet a term sheet is supposed to be a term sheet while you work out 286 00:39:24,717 --> 00:39:32,317 The the nitty gritty of the long form deal and it doesn't sound from the facts of the case like they ever tried to get it to a long form deal 287 00:39:32,577 --> 00:39:37,137 It's not like they later after the episode started being delivered they had a disagreement about things 288 00:39:37,384 --> 00:39:48,544 They just never did the the long form and well hey and we don't know that may all come out in depositions as to 8 AM timing wise maybe this was a, 289 00:39:49,375 --> 00:39:58,615 A COVID deal. Could be the people having to work from home or being laid off and they just slips through the cracks. Who knows? But yeah. 290 00:39:58,630 --> 00:40:10,450 You know, I mean, it's not unusual in the Hollywood industry that deals or you know, the deal is papered long after the film has been released or something like that. So, it may also just be a sort of a casual attitude and approach. 291 00:40:11,152 --> 00:40:18,532 We don't know who the lawyers and business fairs folks were but you know it may be sort of customer practicing the trade. 292 00:40:20,541 --> 00:40:29,841 Articulated how this was going to go down and here we have evidence of why that isn't always a good idea. So. Right. We shall find out more in the fullness of time. I'm sure. 293 00:40:30,507 --> 00:40:31,047 Yep. 294 00:40:32,613 --> 00:40:40,413 Next up we want to move into the AI corner a little bit here and talk about this music AI, 295 00:40:41,238 --> 00:40:48,798 Issue or case that came up the cases Concord Music Group and others versus Anthropec and Thropic is the 296 00:40:49,132 --> 00:40:58,372 Creator of the claw AI told as well as some others and this is the first action taken by music publisher 297 00:40:58,810 --> 00:41:12,370 Against an AI firm over use of lyrics in a large language model three major music publishers that are suing anthropic over the use of lyrics to train it's AI system have arrived at a deal 298 00:41:12,628 --> 00:41:24,148 With the company which is backed by Amazon by the way. Resolving some parts of a pending preliminary injunction. It's universal music, concord music, and ABKO. 299 00:41:26,139 --> 00:41:29,839 And other music publishers suing in Tennessee federal court 300 00:41:30,111 --> 00:41:40,011 Starting back in October of 2023 accusing anthropic of copper and fringement for training its system on the lyrics from at least 500 songs artists like 301 00:41:40,193 --> 00:41:47,513 Katy Perry the Rolling Stones Beyonce and song one example when asked the lyrics to Katy Perry's song Roar, 302 00:41:48,574 --> 00:41:56,674 Which is a concord owned title Claude provided a near identical copy of the words in the song according to complaint. 303 00:41:58,099 --> 00:42:04,639 At the heart of the suit where the allegations that there's already an existing market that's now being undercut by Anthropic 304 00:42:04,977 --> 00:42:12,897 Using these lyrics without consent or payment and the publisher's pointed to me lyric aggregators on websites that do license the 305 00:42:13,079 --> 00:42:22,619 Content. So, settlement agreement in place now, I guess. Anthropic will must maintain its existing guard rails to prevent, 306 00:42:23,098 --> 00:42:31,558 The chatbot from providing lyrics to songs owned by these publishers and not create any new song lyrics based on the copyrighted material, 307 00:42:32,271 --> 00:42:40,191 The publishers can notify anthropic that the guardrails aren't being effective in preventing output that reproduces and 308 00:42:40,427 --> 00:42:49,107 Distributes or displays the stuff publisher Lucy and creates the rivet of works based on those compositions that they can give a notice basically okay 309 00:42:49,357 --> 00:42:52,097 Kind of similar to the. Yeah. 310 00:42:52,167 --> 00:43:00,447 DMCA approach to things, right? And antropical respond expeditionally and undertaken investigation which there will be quiet and cooperation on both sides. 311 00:43:01,930 --> 00:43:04,310 I tested it this morning. Yeah. 312 00:43:05,193 --> 00:43:13,353 So, I went in and you know, thinking I'm smarter than a large language model. I didn't even say, tell me the lyrics. I said, 313 00:43:13,898 --> 00:43:21,878 Something like hey I can't remember the words to oh interesting and then I inserted the song title can you help me and it's spit back out 314 00:43:22,198 --> 00:43:31,618 I understand you're asking for the lyrics of and search songs I don't I can't those lyrics but let me tell you what I know about the song, 315 00:43:32,947 --> 00:43:39,367 And it said here's the songwriters, here's it went to number one on billboard, you know, a gave. 316 00:43:40,112 --> 00:43:47,312 Additional information about the songwriters and the song but it said I and I know for fact this song is not, 317 00:43:48,958 --> 00:43:56,378 Big company says sued. So I thought that was interesting. They there was a guard rail up. 318 00:43:57,577 --> 00:44:06,817 And in the past on other large language models I've asked I haven't didn't do it today but I've asked for the lyrics of this song and it's given them to me. 319 00:44:09,777 --> 00:44:23,617 NMPA National Music Publish Association had brought suit against chat GBT but then I couldn't find anything. I guess there's just been lots of conversations but maybe this is the first lawsuit. 320 00:44:23,666 --> 00:44:25,406 Brought by music publishers. 321 00:44:26,078 --> 00:44:29,678 Against a large large language model. 322 00:44:32,818 --> 00:44:38,978 I thought I saw something about that but I bet they are. Okay. Anyway, so, 323 00:44:39,860 --> 00:44:45,560 The court will retain jurisdiction to resolve future disputes relating to this stipulation and 324 00:44:45,802 --> 00:44:55,942 Your anthropics position is we put up these guard rails it's unlikely any future users be able to use these tools to get lyrics that way there's technical measures and other things, 325 00:44:56,452 --> 00:45:03,532 At all levels to prevent users from simply prompting club to regurgitate the training data, 326 00:45:06,138 --> 00:45:13,818 So they said as a design to be used for copper and infringement and, 327 00:45:14,816 --> 00:45:21,776 The stipulation that they claim, you know, the public statement is there. It's consistent with these priorities where we're trying to do the right thing here basically. 328 00:45:23,005 --> 00:45:29,845 Anyway so the case is still moving forward and the fear used defenses is certainly going to be a big factor in it, 329 00:45:30,480 --> 00:45:39,120 As things move forward along with all the other AI cases I'm sure and the court will eventually decide whether to issue an injunction to 330 00:45:39,456 --> 00:45:45,756 Bar and tropic from training future models on lyrics owned by the publishers so we, 331 00:45:46,441 --> 00:45:49,261 We will know more again. In the future. Interesting. 332 00:45:52,581 --> 00:46:01,401 So we we've talked about this Minnesota deep fake statue right last year. So this proposed yeah, 333 00:46:01,898 --> 00:46:16,598 Okay okay so it's Minnesota statute 609. 771 prohibits under certain circumstances the dissemination of deep fakes with the intent to injure a political candidate or influence the result, 334 00:46:17,237 --> 00:46:18,237 Election. 335 00:46:19,083 --> 00:46:28,803 So I didn't know you could bring but they have brought two plants. I brought a preinforcement challenge to the law and the court denied their preliminary injunction. Okay. 336 00:46:30,425 --> 00:46:31,425 So 337 00:46:32,335 --> 00:46:43,915 Yeah Christopher Coles uses AI tools to create what has been alleged is right wing propaganda content as well as representative Mary Franson who shares 338 00:46:44,326 --> 00:46:51,526 This propaganda and the court says the statue does not penalize quote pure purity or satire 339 00:46:51,708 --> 00:47:06,048 Okay I have lots of questions about that and calls deep fake videos or constitutionally protected as purity emphasizing that they were clearly labeled as pity gosh if I had known labeling something as parody made it parody. 340 00:47:08,352 --> 00:47:13,932 It includes disclaimer stating the sound and visuals were significantly edited or digitally generated, 341 00:47:14,529 --> 00:47:22,629 Well boy parody I mean two two things there one labeling something as a parody take kind of takes the wind out of the sales of the parody, 342 00:47:23,395 --> 00:47:28,835 Right because it takes the the fun and the and the the surprise out of it but also, 343 00:47:30,418 --> 00:47:34,258 Just because the creator labels it parody doesn't mean it actually is a parody, 344 00:47:35,216 --> 00:47:40,076 And and I think that's where this hopefully moves forward to you, 345 00:47:42,209 --> 00:47:48,609 The decision effectively establishes a mandatory disclosure requirement for deep fake content. 346 00:47:48,494 --> 00:47:56,114 Okay I think that's a good thing but we're labeling something as quote purity provides legal protection regardless of whether it truly, 347 00:47:56,766 --> 00:48:01,246 Wallifies this parody under traditional legal standards. 348 00:48:02,501 --> 00:48:07,721 The court said I don't think labeling at a parrot parody tells me it's a deep fake. 349 00:48:10,316 --> 00:48:13,976 I I don't see how putting it a deep fake might, 350 00:48:14,952 --> 00:48:25,152 Again. Let me know it's a deep day. You know, I guess you could do a deep fake it. Still falls. It could be defamatory. You know, there's all kinds of other things that copyright side. Yeah, you know. 351 00:48:25,935 --> 00:48:37,875 Well, no, it's a deep fake law. So, I don't buy it. This was a preliminary injunction phase of a case, right? So, there will be more, 352 00:48:38,628 --> 00:48:52,848 To talk about right I I think there's gotta be I like the intent of protecting consumers from deep fakes I don't think saying put parody on it, 353 00:48:53,400 --> 00:48:57,780 Or text me because it's the average joke consumer. 354 00:48:58,640 --> 00:49:08,420 I as a average show consumer doesn't even know what a parody is. They think anything that's making fun of something is a parody but you and I both know by definition under the copyright. 355 00:49:08,839 --> 00:49:18,259 That is not the definition of a parody. No. So, they gotta come up with something new. Now, here's maybe the practice pointer of the day. 356 00:49:19,435 --> 00:49:22,915 Stanford professor Jeff Hancock submitted an expert 357 00:49:23,315 --> 00:49:35,855 Report supporting the Minnesota's deep fake law it was discredited because he used generative AI to help draft it and the AI fabricated a citation, 358 00:49:36,305 --> 00:49:41,045 Which was an error and he failed to catch it before he submitted his expert report 359 00:49:41,319 --> 00:49:51,739 They court rejected his request to re submit a corrected version emphasizing the irony of an AI expert becoming a victim to AI misinformation. 360 00:49:53,211 --> 00:50:01,371 Well I I this is an assumption but I think we can probably make this assumption the ruling severely damages Hancock's credibility with, 361 00:50:01,870 --> 00:50:07,370 With the court highlighting the importance of verifying a I generated content 362 00:50:07,417 --> 00:50:17,857 So I think they are. Oh my gosh. Let's just scary. You know, I mean we 363 00:50:17,761 --> 00:50:23,041 We all make mistakes. Well, but we gotta be careful about that. 364 00:50:26,034 --> 00:50:28,794 A practice pointer. I I would say this is a standard of care. 365 00:50:29,536 --> 00:50:30,256 Idiots. 366 00:50:38,676 --> 00:50:40,516 Backwards and forwards because, 367 00:50:41,373 --> 00:50:47,253 You know you can't unring that bell this guy's credibility at least with this case this court 368 00:50:47,693 --> 00:50:58,373 Is severely damaged and I would say maybe even in future cases this get sighted as hey didn't this happen to you you know put them on the Wednesday so. 369 00:51:00,494 --> 00:51:05,054 I'm not a litigator but that seems pretty obvious to me so right and I think it's a 370 00:51:05,220 --> 00:51:11,280 It's just tough. I mean, you know, you hear the early on, heard the cases of the associate attorneys. Yeah. 371 00:51:11,819 --> 00:51:22,559 Hey there you know the partner was not reviewing the content and it gets filed and then you have someone at the the a much more established level it's caught in the same snare, 372 00:51:23,720 --> 00:51:24,500 On AI. 373 00:51:26,412 --> 00:51:35,472 Well, let's talk about this this DMCA case. It's the case is called Loper Bright and I don't have the full caption here but, 374 00:51:36,170 --> 00:51:43,730 You may have heard the folklore I guess that well not folklore it's a fact that the ice cream, 375 00:51:45,227 --> 00:51:49,187 Soft serve ice cream machines in McDonald's stores would often, 376 00:51:49,773 --> 00:52:03,753 Be out of service. You go ask for the ice cream and they couldn't do it and they were waiting for the repair service to come and and deal with it and and a lot of times that was because the DMCA was being used as a way of protecting. I guess the software in the 377 00:52:04,168 --> 00:52:07,648 Machines that would maintain the various 378 00:52:07,984 --> 00:52:22,084 Status of things and so nobody was allowed to repair these machines except for the authorized manufacturers representative repair service and there were few and those were few and far between. So. 379 00:52:23,441 --> 00:52:33,641 Again the DMCA prohibits the circumvention of technological measures at effectively you know that are used to effectively control access to a work protected under the 380 00:52:33,794 --> 00:52:42,854 Under the corporate act and so it was a violation to go in there and circumvent the the scramble the the 381 00:52:43,228 --> 00:52:51,508 The or decrypt the encrypted stuff in order to avoid or bypass or remove or deactivate or whatever. And and, 382 00:52:52,140 --> 00:53:00,000 McDonald's machine's worst subject to these kinds of protections against just anybody coming in and and I gather as to actually, 383 00:53:00,459 --> 00:53:07,419 Read the Erico data and figure out what needed to be done to fix it as well as implementing a fix. So, 384 00:53:08,101 --> 00:53:14,581 The corporate office has implemented a new exemption to, 385 00:53:15,727 --> 00:53:22,387 Enable these kinds of repairs to the ice cream machines so that now the owner of a franchise can, 386 00:53:23,116 --> 00:53:27,056 Figure out how to get it or it can bring in another repair service and so on. 387 00:53:28,789 --> 00:53:34,249 So the carbon office specifically determined that the prohibition against circumvention of technology measures 388 00:53:34,568 --> 00:53:37,868 To control access and and cooperated works, 389 00:53:38,835 --> 00:53:51,015 Doesn't apply to persons who engage in non infringing uses of certain classes of coppery works including but not limited to and there's a list of categories motion pictures television shows videos literary works, 390 00:53:51,628 --> 00:53:58,108 Excluding computer programs and compilations compiled a specifically for text and data mining purposes. 391 00:53:59,171 --> 00:54:09,011 Literary works consisting of compilations of data generated by medical devices or their personal corresponding monitoring system. Okay. So you have a textual work. 392 00:54:08,975 --> 00:54:18,095 Yeah a print out of that work. Okay. Computer programs that enable wireless devices smartphones, smart televisions, land vehicles, marine vessels 393 00:54:18,310 --> 00:54:20,530 So this is sort of that it it's a right to repair, 394 00:54:21,119 --> 00:54:28,379 Exception so when you take the car and you have the mechanic put it on the rack and it's like oh it's Eric code whatever. 395 00:54:29,617 --> 00:54:35,977 Bacon, work on it. Okay. Yeah and and not have to maybe buy the software from the manufacturer for that, 396 00:54:37,170 --> 00:54:42,810 Analytics tool or whatever. So. Right. That analysis tool. So, so, 397 00:54:43,805 --> 00:54:54,245 Yeah so there it is that it's a basic exemption I will you know the question is how far is this going to go what's going to be the scope of of this because it is an including but not limited too. 398 00:54:55,300 --> 00:55:04,780 When you talk about these non-infringing uses. Right. I think we're back to what's the word? The the betamax 399 00:55:05,059 --> 00:55:10,099 Deserting on there it's capable of certain non-infringing uses therefore yeah, 400 00:55:10,596 --> 00:55:14,796 And I ain't just think it's interesting you know Macdonald's is the one that makes the, 401 00:55:15,628 --> 00:55:21,808 Makes the case law or makes the change in the ruling but it it that really does make sense because, 402 00:55:22,793 --> 00:55:32,573 Joe's Garage is probably not that concerned about figuring out the air code and repairing my car. A franchiseee. Yeah. If McDonald's. 403 00:55:32,858 --> 00:55:39,938 Is probably concerned about bringing somebody into repair the McFlurry machine so 404 00:55:40,285 --> 00:55:50,185 Right. Yeah. Well, and I wonder it wasn't McDonald's. I was behind this or was it some local franchisees that got together? I don't yeah, I don't know but I guess just saying they're the ones kind of. Yeah. 405 00:55:50,844 --> 00:56:01,524 The law is based changes based on yeah probably not but I'm assuming it's because franchisees just didn't want to run the risk. 406 00:56:01,782 --> 00:56:02,202 Yeah. 407 00:56:02,880 --> 00:56:12,720 Hey Donald have an interesting protecting this stuff this this ruling might have gone you know it was probably lobbying in the cophead office hmm yeah could be could be 408 00:56:12,774 --> 00:56:22,374 The interesting thing for me is is you know just a quick question about this is after the the abandonment or not abandonment the overturning of the chevron deference. 409 00:56:24,648 --> 00:56:27,468 Thing in giving administrative agencies, 410 00:56:28,741 --> 00:56:40,201 Difference for their rulings. I wonder if this copperhead off is making rules like this is going to have any impact or if if let against their still going to come in and say it's still a violation of the DMC. We don't care what. Well, cop wrote office. 411 00:56:43,148 --> 00:56:47,768 Make a difference. Make their rules. Oh, okay. So, 412 00:56:48,576 --> 00:56:56,016 I just find myself wondering if the the follow on effects of that abandonment of chevron is going to take the 413 00:56:56,390 --> 00:57:06,050 Ability to make rules away from you know their ability to effectively make rules away from agencies like the top read office and pen and trademark office and things like that are we going to see 414 00:57:06,472 --> 00:57:15,592 More litigation of decisions that we normally would have just sort of accepted from these agencies. I don't know. Interesting. Yeah. Yeah. Yeah. 415 00:57:16,285 --> 00:57:19,165 What is this about AI works protection of. 416 00:57:21,596 --> 00:57:28,536 Yeah so the the where where are we I guess is the current question as to a work, 417 00:57:29,636 --> 00:57:33,416 That has been complete. It has been created. I I 418 00:57:33,408 --> 00:57:44,808 Kind of Donny won't use the word created but created predominantly through AI model so in 2002 the US copyright office denied Jason 419 00:57:45,065 --> 00:57:51,845 2022 yeah 2002 they would have been way ahead of the game but in in 2022. 420 00:57:53,751 --> 00:58:04,051 The US Capior office denied Jason Allen a copyright to his work that was entitled theater the opera special it was a, 421 00:58:05,104 --> 00:58:11,524 Visual work created predominantly through inputting about 624 different text based 422 00:58:11,613 --> 00:58:22,533 Prompts into the program mid journey they cooperate office denied the copyright registration because of lack of human authorship which is, 423 00:58:23,262 --> 00:58:31,302 A requirement for copyright protection. Allen rebutted the human authorship test saying it was miss applied. 424 00:58:31,499 --> 00:58:38,819 That use of AI should be considered similarly to other tools available to artist to help them create a work. 425 00:58:40,042 --> 00:58:43,942 Cab right office nevertheless has maintained its refusal. 426 00:58:44,480 --> 00:58:57,920 Portions of Alan's image that were generated by the AI tools and noted Mister Allen had no control over how the artificial intelligence tool analyzed interpreted or responded to his profile, 427 00:58:58,505 --> 00:59:06,405 And did not he did not exercise any control over the actual creation development or execution of the image 428 00:59:06,680 --> 00:59:10,160 At the mid journey program rendered onto the screen. 429 00:59:12,234 --> 00:59:21,594 Alan recently sued in Colorado federal court reverse the US corporate office decision he seeks to obtain a declaratory judgment stating that his work is 430 00:59:21,524 --> 00:59:28,604 Eligible for copyright protection and to overturn the US copyright offices decision and obtain a registration 431 00:59:28,979 --> 00:59:33,959 And declare my legal standards surrounding works created with AI assistance, 432 00:59:34,623 --> 00:59:40,383 Okay so I he's not the first one that the copyright office has refused we had the other work, 433 00:59:40,852 --> 00:59:46,912 Hey part of it was registered part of it was not registered. Yes yeah. 434 00:59:47,730 --> 00:59:53,070 Yeah. Alan's got a define what he's trying to protect. He's represented by, 435 00:59:54,104 --> 01:00:04,004 Cancel done lap bennette and lightweight is that correct? Ideas cannot be copyrighted. So, it's gotta be the physical form of what he's trying to protect. 436 01:00:05,590 --> 01:00:10,330 And it needs to be original work of authorship. I mean, fixed into a tangible medium of expression. 437 01:00:10,902 --> 01:00:15,582 So I think the questions become how is he going to meet the definition of. 438 01:00:17,240 --> 01:00:26,540 An original work of authorship based in medium of expression that is required to have human authorship. And here again, 439 01:00:27,987 --> 01:00:41,107 Challenging in an administrative agencies decision does the court give any difference at all to that administrative agency's policies on these kinds of things or does it decide these things do novo, 440 01:00:41,987 --> 01:00:43,427 Right in the, 441 01:00:44,012 --> 01:00:51,812 I don't know when the human authorship requirement showed up in the companion. Yeah. It was well before the apes. 442 01:00:52,743 --> 01:00:59,023 No that what we've talked about this in the last 5 or 6 years that there was some clarification to the, 443 01:01:00,413 --> 01:01:08,493 That added language so I mean related to that eight to the decision so, 444 01:01:09,111 --> 01:01:18,051 Yeah. Well, I think this loper bright decision has very far reaching consequences. This is the abandonment of the chevron difference that I was talking about. 445 01:01:19,931 --> 01:01:25,511 You know copper office compendium is an administrative policy document that, 446 01:01:26,620 --> 01:01:37,660 May or may not have any relevance in a court I mean I guess it could be persuasive authority even if not deferred to and likewise the trademark examining the manual of examining procedure could that be, 447 01:01:38,233 --> 01:01:47,653 Viewed as it's just it's just some ideas from some functionaries over there the bureaucrats but the courts can do what they want to interpret the law, 448 01:01:48,109 --> 01:02:00,229 And disregard those things is this the dismantle and the law and it in the changes in the law can shape and does shape what content is in. 449 01:02:01,018 --> 01:02:09,118 The next edition of the main tribunt manual of examining procedure and what's in the next edition of the copyright companion. 450 01:02:10,236 --> 01:02:12,876 There is an interplay between, 451 01:02:13,999 --> 01:02:20,299 Reality as to what's happening but we've got to have some kind of guidance to understand, 452 01:02:21,444 --> 01:02:28,044 Yeah. Yeah. How did how did implement you know a few lines out of the constitution? 453 01:02:30,526 --> 01:02:39,266 Into our practice yeah and now the statue right I mean this statue is that big they comedium is that big except, 454 01:02:40,097 --> 01:02:49,157 Yeah. So, you know, I I just have concerns that we're we're basically saying we don't care what these government agencies have said. 455 01:02:50,203 --> 01:02:55,003 We the courts the spring court and and down are going to decide these things without 456 01:02:55,382 --> 01:03:04,562 A lot of reference to that. You know, I guess that's it's certainly a way to go. I think it's going to put an incredible burden on courts if people start challenging these administrative agencies 457 01:03:04,853 --> 01:03:12,413 More than they already do. So, you know, the chef run thing was an environmental law. I think, and it, it 458 01:03:12,820 --> 01:03:24,940 I guess I need to go back and kind of reread that bird purposes of what you're you're saying how far kinetic extend my understanding is that prior to low probite 459 01:03:25,279 --> 01:03:30,319 Courts were required to give substantial difference to the determinations of, 460 01:03:30,870 --> 01:03:38,610 Various administrative agencies the EPA and in the particular case of of the chevron and so it was the right case for the 461 01:03:39,043 --> 01:03:41,623 The anti-administrative 462 01:03:42,032 --> 01:03:42,812 Agency. 463 01:03:49,132 --> 01:03:52,772 Less controversial in the eyes of the public and and, 464 01:03:54,302 --> 01:03:58,142 And yet make decisions that affect you and I on a regular basis so, 465 01:04:02,988 --> 01:04:04,048 For our, 466 01:04:04,853 --> 01:04:12,773 The last student listeners. There's a law review paper. Right there. There you go. That is such a law review paper. 467 01:04:13,558 --> 01:04:25,318 Okay. I'm sorry. No, yeah, I know and then, I'm just going to throw into that as we started the conversation talking about the Grammy's and we're coming to the clothes. And we're talking about this. It's just to say, 468 01:04:26,089 --> 01:04:33,109 Last students it's too late for this year but the the recording academy always has a paper competition 469 01:04:33,237 --> 01:04:41,457 Hey in the fall and the grand prize is all expense paid trip to the Grammy Awards so anyway 470 01:04:41,609 --> 01:04:50,309 Be thinking about that and you could potentially come up with some creative paper based on the Chevrolet case and how it might apply to the music business. Anyway, 471 01:04:50,360 --> 01:04:59,480 Just throwing that out there. And with that, we have arrived at the end of another episode of Entertainment. Well, I thought this was going to be a short episode and here we are over an hour again. 472 01:05:00,487 --> 01:05:05,047 We somehow managed to fill the we discussed so much to say up here. 473 01:05:05,047 --> 01:05:19,027 So, you know, gotta get it out. Yeah. Anyway, as always, I say a big thank you to our loyal listeners for spending your time with us. You know, the best way you can help us and pass back is tell your friends, spread the word about the show. We'd love to have more folks listening and 474 01:05:19,203 --> 01:05:29,823 And hopefully learning from us maybe disagreeing with us share your feedback and we hope that you have feedback for us leave it on on the voice widget on the website at entertainment law update or just 475 01:05:29,808 --> 01:05:38,568 An email to entertainment law update@Gmail. Com or or reach us through our various social media channels and why don't you tell folks how to reach you, 476 01:05:39,485 --> 01:05:47,645 Yeah so you can find me at Create Protect. Com that'll take you to my long time website. 477 01:05:49,117 --> 01:06:03,217 Blog that I've been using for years. You can find me my new firm is Harper Bates. Com on most social media. I am at Tamara Bennett T A M E R A B E N N E T T 478 01:06:03,638 --> 01:06:11,498 And I'm Gordon Firemark from Los Angeles. The website is@Firemark. Com. You can also find Gordon Firemark. Com. Different websites but 479 01:06:11,740 --> 01:06:22,180 Same stuff similar stuff and my YouTube channel is is doing quite nicely so find me G Firemark on YouTube and most other social media websites that's the handle, 480 01:06:22,723 --> 01:06:24,343 A big shout out to our, 481 01:06:24,874 --> 01:06:33,814 Team of volunteer contributors managing added to John Janiceek has been with us a good long time and we we love the help that you give us John. Charles Thorn, Alexis Allen, 482 01:06:34,641 --> 01:06:43,221 Violet jang Tasha Spear and Dawson Holder all also contribute to our shows and if you are interested in becoming a part of our 483 01:06:43,572 --> 01:06:53,112 Little family of yo you contributors reach out to us entertainment law update@Gmail. Com send a cover note in a resume and we'll we'll circle back with you, 484 01:06:53,663 --> 01:06:58,823 And I think that is going to do it for this episode of Entertainment. 485 01:06:58,800 --> 01:07:28,555 Music.