Copyright Thickness, Thinness, and a Mannion Test for Images Produced by Generative Artificial Intelligence Applications
Molly Torsen Stech Human authorship has always been, and continues to be, a foundational requirement for copyright protection to subsist in a work. Generative artificial intelligence (AI) challenges this prerequisite but does not overcome it. The output of generative AI is not discernibly different from the output of a human author and therefore benefits from a false sheen of originality. While some argue that prompt engineering fulfills the requirements of originality––the threshold for which is quite low across jurisdictions––prompting still lacks the requisite link between human creativity and the resulting work to receive copyright protections. International copyright treaties and domestic...
Hands Off My Post: Rethinking Section 230 and Private Online Platform Liability
Justin Sells Throughout the COVID-19 pandemic and the Israel-Hamas conflict, private online platforms, namely, social media websites such as Facebook, Instagram, and X (formerly Twitter), have censored their respective users by removing, downgrading, or materially altering users’ posts. Before Murthy v. Missouri, the United States government encouraged and coerced private online platforms to censor users. Arguably, the joint efforts of the U.S. government and private online platforms to censor users have resulted in First Amendment violations, copyright infringement, and breach of contract. Private online platforms, however, are shielded from liability under 47 U.S. Code Section 230. This Article argues that...
Regulating Into the Void: Existential Uncertainty from a AI Necessitates a New Federal Research Agency
Alexander C. Kurtz Abstract: Generative artificial intelligence (AI) is a nascent technology that threatens great harm while simultaneously promising significant benefits. Although AI possesses incredible capabilities to solve problems and complete tasks, it also poses two major threats: technological dislocation and existential catastrophe. Accordingly, the novelty and power of generative AI has led to calls for regulation, including requests for a new federal agency. This Article examines whether Congress should authorize a new federal agency for AI and, if so, what its scope of authority should be. In contemplating such regulation, it is important to consider whether existing agencies can...
Shock & Awe: Lethal Autonomous Weapons Systems and the Erosion of Military Accountability
Austin Tarullo In 2023, the United States Department of Defense announced plans to deploy autonomous weapons systems by 2025. These weapons, which can select and fire upon targets without human intervention, are no longer the lore of science fiction. Although fears that such weapons will lower the barriers to entry to war have spurred global calls to ban them, the Department of Defense’s announcement confirmed that the use of autonomous weapons is inevitable. AI applications in other sectors––including consumer products, medical diagnoses, and law enforcement––have illuminated shortcomings inherent to intelligent algorithms, including bias, opaqueness, an inability to comprehend causation, and...
The Antitrust Alphabet: Amazon, Buy Box, and Competition
Nathaniel DeMelis Eighty-three percent of sales made on Amazon.com come from the “Buy Box” system. This website feature has come under increased scrutiny in the State of California and the United Kingdom. Both jurisdictions have sued Amazon, citing that Amazon’s Buy Box is anticompetitive and harms consumers at large. This Article considers the parallel lawsuits Amazon is facing and examines the different antitrust enforcement mechanisms and policy motivations in both California and the United Kingdom. Ultimately, this Article suggests that the California courts will find the Buy Box to be anticompetitive, due largely to their willingness to diverge from the federal consumer-welfare...
Facial Recognition in the Eyes of the Law
Emilia Ball Law enforcement throughout the United States uses facial recognition technology to make arrests, despite proof that reliance on this mechanism for identifying subjects has led to several wrongful arrests. Due to the United States’ lack of comprehensive federal data privacy laws, most Americans are unaware that their photos and data make up the information that facial recognition databases use to make these arrests. This Article examines the current state of facial recognition technology and data privacy laws in the United States and the European Union. Moreover, it advocates for a federal data privacy law that accommodates current and...
Eighty Degrees in Boston, in April: A Problem Best Suited for Intellectual Property?
Alice Yoon Humanity is currently losing the fight against climate change. As temperatures continue to rise, immediate and affirmative action must be taken to reduce greenhouse gas emissions. The development and implementation of technology that can mitigate climate change, known as “green technology,” will be critical moving forward. A commonly proposed method for incentivizing the development of green technology is strengthening intellectual property rights for companies who develop such technology. Nevertheless, considering the recent harmful role intellectual property rights played during the COVID-19 pandemic, it is unclear whether emphasizing increased access to patent rights for green technology will actually lead...
Keeping the Good Faith: YouTube, Fair Use, and the DMCA
Alexandra M. Even YouTube is an important platform for user-generated content and serves as a positive space for creativity on the internet. Nevertheless, there are some glaring problems with the way YouTube handles copyright infringement. Congress enacted the Digital Millennium Copyright Act (DMCA) before the internet had taken shape into the vast and complex body we know today. Copyright holders are given far more leniency than the creators accused of infringement, largely due to a subjective good faith standard imposed by the courts. This article proposes the good faith standard in § 512(c) of the DMCA be amended to incorporate...
iSpy Someone Getting an Abortion: The Use of Personal Data in the Post-Dobbs Era
Rebecca Horton In the wake of the Supreme Court’s June 2022 ruling in Dobbs v. Jackson Women’s Health Organization, personal data has become a means of investigating and prosecuting individuals who seek or provide abortion services. With little federal oversight into the collection and disclosure of users’ personal data, third parties have significant latitude to sell or profit from sensitive information. The recent use of location and personal data implicates the privacy of millions of individuals and raises significant questions around health care and technology laws in states where abortion is now illegal. In the absence of sweeping federal regulations around...
BLOG POST: One Step Forward or One Step Back: Artificial Intelligence Increases Accessibility but Limits Copyright Protection for Artists with Disabilities*
*This writing is a blog post. It is not a published IPTF Journal article. Josephine Meier In 2018, artist Sean Aaberg suffered a debilitating stroke, severely affecting the left side of his body.[1] Prior to his stoke, Aaberg was a boardgame designer who found success drawing colorful, vivid images and spinning classic “fantasy tropes” into something more engaging and modern for players.[2] After his stroke, Aaberg found a way to continue his craft by turning to artificial intelligence software Midjourney for assistance in rendering the drawings he was no longer capable of making independently.[3] The Midjourney program allows users to...