Quartz sync: Mar 13, 2024, 10:07 AM

content/Essays/no-ai-fraud-act.md

@@ -41,17 +41,23 @@ If we were to evaluate the bill for how well it addresses these problems, I thin
 #### "Rules are more like guidelines, really."
 This analysis looks at the bill by first accepting the proposition that all enacted laws are put through a judicial sniff test, and stretched a little according to the mores of the judge being asked to apply it. This approach is common to all legal critiques on this site.
 - Sidebar: there's also a somewhat pressing meta-problem I have with the articles that they outline that they are concerned about *something*, but don't follow the concern to its logical conclusion of spelling out "here's what effect that would have on the everyday citizen," or "here's the historical context that would justify our concern." People who are familiar with this body of law can keep up, but it could be indecipherable to others. I'm going to try to provide that context where necessary. Let me know if it feels like I stop short at any point here.
+
+For this bill specifically, the primary adverse effect that pundits (and I) are watching for is **if it enables new legal arguments/rights outside of AI**. If a provision does that, it falls out of alignment with the Act's purpose. The headline item unfortunately does just that.
+
 ---
 ## Audio + Visual
 First, let's talk about something the articles properly draw attention to. 
 
-The headline item in the bill is its federal right of publicity in one's voice and image. The primary adverse effect of the bill that pundits (and myself) are watching for is **if it enables new legal arguments/rights outside of AI**, which means that effect would not be in line with the Act's purpose. Making the right of publicity so broad definitely has this effect. However, there is an argument that senators included limiting language elsewhere, which was enough to cabin this right. I disagree with that view, and I think that the causes of action outlined later in the bill text are only one application of this new right. Here are some other possible arguments that could be made to fit under the right-of-publicity umbrella:
+The newsworthy component of the bill is its federal right of publicity in one's voice and image. This unqualified provision raises justified concerns that it's an overly broad response to a narrow AI problem. I've got three main concerns:
 
-For one, this could be used as a statutory justification to federally try state right-of-publicity causes of action. These are typically kept out of federal court, as there are policy reasons for letting the states try the actions they recognize (federalism, juries' attitudes toward parties, perceived legitimacy of the resulting decision, etc). Perhaps more importantly, ***Erie* doctrine** all but abolishes federal common (unwritten/judge-made) law and relegates those causes of action to the states exclusively. If we're asking judges to incorporate what is often state common law into a federal statute, this could be in direct violation of that doctrine.
+First, there's the concern that this right will be abused to limit otherwise proper speech that has a neutral or negative effect on public figures. Think defamation but without truth as a defense. I'm not certain that something like anti-SLAPP law would cover every corner of the right. This provision absolutely falls within the concern that the bill is touching rights outside of AI. I don't think the other sections of the bill speak as strongly to a SLAPP concern though, I talk about that more when discussing [[#The First Amendment Defense]].
+
+Alternatively, this could be used as a statutory justification to federally try state right-of-publicity causes of action. State law is a quilted patchwork of name/image/likeness rights and remedies. These are typically kept out of federal court, as there are policy reasons for letting the states try the actions they recognize (federalism, juries' attitudes toward parties, perceived legitimacy of the resulting decision, etc). Perhaps more importantly, ***Erie* doctrine** all but abolishes federal common (unwritten/judge-made) law and relegates those causes of action to the states exclusively. If we're asking judges to incorporate what is often state common law into a federal statute, this could be in direct violation of that doctrine.
+- Sidebar: also, state doctrines are called NIL (name, image, likeness) for a reason. Who knows what states they extend to voice in?
 
 Another (more out-there) alternative: given that this is specifically labeled as an IP right, courts could read this to preempt state publicity law. Thankfully Congress anticipated this (definitely unfavorable) outcome and included a no-preemption clause; I'll be watching to make sure that makes its way through the amendments as the bill goes through the process.
 
-Even without addressing the duration/transferability of the right, it's definitely too broad. The rest of the bill though, being one application under that right, is not.
+There is an argument that senators included limiting language elsewhere, which was enough to cabin this right. I disagree with that view, and I think that the causes of action outlined later in the bill text are only one application of this new right. Even without addressing the duration/transferability of the right, it's definitely too broad. The rest of the bill though, being one application under that right, is not.
 ## Breadth
 **Bottom line up front:** To use a hypothetical, I don't think a judge would interpret this bill to haul Fox into court because Family Guy made fun of Tom Cruise, and Sean Kenin just so happened to record the lines in a modern studio. 
 

content/Misc/legal-names.md

@@ -9,4 +9,6 @@ lastmod: 2024-02-28
 A collection of project/article/series names for law-adjacent subjects that I'll never get to use. Feel free to steal.
 - Doctrinal Mischief
 - Replevin for a Dream
-- Circuit Split (for use in connection with tech law)
+- Circuit Split (for use in connection with tech law)
+- 5th Circus
+  - shamelessly stolen from Techdirt

content/Projects/zotero-lexis-plus.md

@@ -29,7 +29,7 @@ It's worth noting that all of these steps would be performed in separate locatio
 
 ---
 ## There's got to be an easier way.
-I'm familiar with [Zotero](https://www.zotero.org/) from my computer science days for researching IEEE papers sources. It's compatible with the largest academic article and book databases, and supports attachments. 
+I'm familiar with [Zotero](https://www.zotero.org/) from my computer science days for researching IEEE paper sources. It's compatible with the largest academic article and book databases, and supports attachments. 
 
 Alas! I can't use it to save cases. All resources on the internet tell me that Zotero is a great resource for legal research, with the caveat that it's incompatible with the biggest legal research databases, [WestLaw](https://legal.thomsonreuters.com/en/westlaw) and [LexisNexis](https://www.lexisnexis.com/en-us/products/lexis-plus.page). 
 ## Turns out Zotero's compatibility is an open source project with inbuilt development tools.

content/bookmarks.md

@@ -5,7 +5,7 @@ tags:
   - misc
   - seedling
 date: 2024-01-13
-lastmod: 2024-01-14
+lastmod: 2024-01-143-07
 ---
 One of the core philosophies of digital gardening is that one should document their learning process when trying new things. As such, here's my very disorganized to-dos and to-reads in the form of a public bookmark list. This page will change very often.
 

content/curated.md

@@ -14,6 +14,7 @@ Here are some of the more interesting/mature works on my site organized by topic
 - [[Essays/law-school|Law School is Broken]]
 ## Open Source
 - [[Projects/zotero-lexis-plus|Zotero now usable by the legal profession]]
+- [[Projects/rss-foss|Toward RSS]]
 - [[Projects/rsgistry|rsgistry]]
 ## Tech
 - [[Projects/my-computer|My Computer]]