By: William H. Kronblat

A family member sends you a video featuring a prominent political figure saying some rather crazy things. Your family member is in disbelief over what the political figure said. You are also shocked at the contents of the video, but something seems off. You are not sure, but you think the video has been edited or altered with artificial intelligence. You check the video’s comments and it turns out other people were also shocked by the video’s contents, but others also suspected the video may have been edited. Turns out the video was not a real speech at all, but a deepfake.

What are Deepfakes? What’s the Concern?

As social media usage increases and as social media becomes a predominant news source for many individuals, a new problem arises. That problem is deepfakes. Deepfakes are  “online imagery that can make anybody appear to do or say anything within the limits of one’s imagination, cruelty, or cunning.” Deepfake technology has continued to advance, and the proliferation of deepfakes is growing at an alarming rate. The World Economic Forum reported that in 2020, the number of online deepfake videos was approximately  145,277; a sizable jump from the 14,678 deepfake videos reported the previous year. 

United States agencies are feeling uneasy over the  rapid increase in online deepfakes. For instance, the NSA, FBI, and CISA, have expressed concerns on the proliferation of deepfake technology, noting that malicious actors may use deepfake technology to perpetuate “disinformation operations.” Similarly, the Department of Homeland Security identified deepfakes as a potential national security concern and as a threat to “individuals and industries.”

State Action on Deepfakes:

Given the growing concerns surrounding deepfake technology, you may be asking, what is being done to address this issue? What are government agencies or elected officials doing to stop deepfake misinformation and election disinformation? 

California has been a leader amongst U.S. states in terms of regulating AI and deceptive AI campaign ads. California has passed various pieces of legislation aimed at deterring deceptive campaign ads including a law that requires political action committees to disclose the use of artificial intelligence to create or alter ads. California Governor, Gavin Newsome, has mentioned deepfakes relating to election disinformation as a particular area of state concern. 

Ahead of the 2024 election, Gavin Newsom signed three bills aimed at addressing AI generated false images or videos in political ads. One of the bills, Assembly Bill 2839, particularly focused on deepfakes. Assembly Bill 2839 would have “made it illegal to distribute ‘materially deceptive audio or visual media of a candidate’ 120 days before an election and, in some cases, 60 days after.” 

Current State of Assembly Bill 2839:

Assembly Bill 2839 was set to take effect immediately, but it has run into a legal hurdle.   Federal U.S District Judge John A. Mendez granted a preliminary injunction enjoined Assembly Bill 2839 following a lawsuit to block the legislation. In his decision, Judge Mendez found that Assembly Bill 2839 likely violates the First Amendment and is unconstitutional because it did not pass the strict scrutiny standard for regulating speech content. Judge Mendez gave substantial weight to California’s interest in protecting fair elections, but noted that “this interest must be served by narrowly tailored ends.”  Judge Mendez cited to the US Supreme Court’s decision in New York Times v. Sullivan, where the Supreme Court affirmed that even “lies with malice” were protected speech under the First Amendment. Judge Mendez further clarified that the concerns surrounding deepfakes “do not give legislators unbridled licenses to bulldoze over the longstanding tradition of critique, parody, and satire protected by the First Amendment.”

Christopher Kohls, a conservative commentator, brought the lawsuit to block the legislation. Kohls is responsible for numerous deepfake videos satirizing Democrats, including Presidential nominee Vice President Kamala Harris. Governor Gavin Newsome cited one of Kohls’ videos when he signed Assembly Bill 2839, but the Bill was introduced in the California Legislature well before Kohls published the video Newsome referred to. Kohls drew support from Elon Musk, the owner of X, who boosted Kohls’ video and criticized Assembly Bill 2839 claiming that Gavin Newsom was trying to “make parody illegal.” 

What’s Next?

It is important to note that Judge Mendez only issued a preliminary injunction, which is merely temporary. In other words, this injunction does not permanently get rid of Assembly Bill 2839. The preliminary injunction simply blocks the law from going into effect until Christopher Kohls’  lawsuit is completed.  However, Judge Mendez said that Kohls is likely to succeed in his lawsuit and get Assembly Bill 2839 struck down as unconstitutional because the Bill is too broad and runs afoul of First Amendment free speech protections. Judge Mendez suggested that Assembly Bill 2839 was excessive and that a less restrictive approach like “counter speech” would be more permissive. However, Judge Mendez did not address this concept in detail.

While California’s legislation on deepfakes is facing an uphill battle, federal legislation aimed at addressing election deepfakes has been proposed in Congress by a bipartisan of lawmakers. This Bill would allow the Federal Trade Commission to regulate AI generated election content similarly to how it has regulated other political misrepresentations for decades. 

The Federal Election Commission has also started to consider potential regulations aimed at curbing AI and deepfake election-related misrepresentations. The FEC has already taken some steps at addressing AI generated content when they outlawed AI-generated robocalls that were meant to discourage voters. 

These proposed regulations still have to be approved and also clear the First Amendment hurdles that Assembly Bill 2839 has run into. Nonetheless, it is clear that Assembly Bill 2839 will not be the only attempt to regulate deepfakes and misinformation, at least in the election setting.  The concerns surrounding deepfakes do not appear to be trivial, but finding a solution that respects the fundamental protection of the first protection is easier said than done. 

 #Deepfakes, #First Amendment, #Misinformation

By: Miranda Glisson

Equestrian sports stretch back thousands of years, to the Olympic Games of 680 BC, where chariot racing was popular. In recent years, the equine industry has experienced significant growth, resulting in a convergence with technology, making utility patents of use across various equine sectors. Utility patents are often seen in equine equipment and breeding practices, as well as in veterinary medicine, and horse management operations.

Utility Patents

In the United States, utility patents can be obtained by individuals who invent or discover new and useful processes, machines, manufactures, or compositions of matter. These are commonly referred to as the four categories of subject matter appropriate for a patent. 

To qualify for a patent, United States law stipulates an invention be novel, useful, non-obvious, and of patentable subject matter. Novelty ensures the invention is entirely original and distinct from anything that currently exists, and usefulness requires the invention serve a practical purpose. Among the criteria, the non-obviousness requirement can pose the biggest challenge as it demands the invention be something not readily apparent. Utility patents protect innovators by granting them the legal right to exclude others from making, using, or selling the patented invention for 20 years from the application date.

Technological Improvements in Tack 

Traditionally, horse equipment, or “tack,” has been crafted from leather, textiles, and hardware. Over centuries, these materials have evolved to prioritize the fit and performance of both the horse and rider. Today, innovative technologies are being integrated into tack and rider accessories to provide data on training, rider biomechanics, and horse performance.    

An exciting example of emerging technology in the equestrian industry is a smart saddle prototype that utilizes self-rebound cambered triboelectric nanogenerator technology (SRC-TENG) to measure pressure points created by the rider and felt by the horse. This technology provides real-time, valuable data on the rider’s position and sends out an alarm in the event of a fall. The incorporation of SRC-TENG sensors on the saddle is significant, as it allows the rider to monitor pressure changes when they shift positions. This saddle prototype could benefit from a utility patent to prevent other manufacturers from using this technology without the inventor’s permission. 

Additionally, Vert, a new technology that currently has a patent pending, is a multifunctional sensor and display designed to attach to the head piece of a bridle, or the headgear used to control a horse. It measures a horse’s head angle in relation to the vertical (when a horse’s head, neck, and body are positioned for optimal balance and movement) as well as pace, distance, and heart rate. 

There are a wide array of tack innovations that focus on leveraging technology to enhance the comfort and performance of both horse and rider, that may qualify and benefit from utility patent protection.

Equine Breeding 

Breeding is another sector of the equine industry which utilizes patent protections. Prior to 1980, living subject matter was ineligible for patent protection, because it did not fall within one of the four statutory categories. However, in Diamond v. Chakrabarty, the Supreme Court explained that Congress intended for patent laws to have a broad scope. The Court held genetically engineered bacteria to be patentable, reasoning that they fall under the categories of “manufacture” and/or as “compositions of matter.” 

The United States Patent and Trademark Office has further clarified, “non-naturally occurring, nonhuman, multicellular living organisms, including animals,” are patentable subject matter under 35 U.S.C. §101. The office explained further that a bacterium does not fall under the product of nature exception—a judicial exception to the four statutory categories of patentable subject matter which excludes the laws of nature and natural phenomena—as “it is not excluded from patent protection merely because it is alive.” 

Genetically engineered bacteria are being utilized in equine breeding. A notable example is the creation of genetically modified horses with the myostatin gene removed, resulting in enhanced muscle growth. 

There is a large financial incentive to breed top competition horses and the equine industry has a significant impact on the U.S. economy, contributing $177 billion overall. In 2018, the horse breeding sector alone was valued at $39 billion. One thoroughbred colt, sired by Triple Crown winner Justify, sold in March 2024 for $700,000 demonstrating how lucrative breeding top performance horses can be. However, only genetically modified, and not naturally occurring, animals are eligible for patent protection. For instance, the United States Court of Appeals for the Federal Circuit found that a hybrid between a domestic cat and a bobcat is a product of nature, and therefore cannot be patented as the breed results “from matings known to occur in the wild.” Additionally, animals produced through traditional selective breeding, like selectively bred dogs with desirable traits for particular environments or tasks, are not patentable, as patent eligibility is restricted to those animals genetically engineered by humans.  

On the flipside, if a horse is genetically modified it may be prohibited from competing. Genetically modifying horses to gain a competitive edge threatens the sustainability of horse breeding and the integrity of equine athletes. In response to this threat, governing bodies of equestrian sports, including the Fédération Equestre Internationale and the International Federation of Horseracing Authorities, prohibit genetically modifying horses for enhancements.

Nonetheless, breeding systems, devices, or procedures, like artificial insemination, may be patentable. For example, a lavage system designed for mares (female horses) experiencing difficulties conceiving after giving birth has successfully secured a patent. 

Even though genetically modified horses are banned from most equestrian competitions, resulting in the reduction of financial incentives to genetically modify a horse, different technological devices, systems, or procedures are still available to be patented.  

International Patent Importance

Equestrian sports demonstrate a considerable international presence, with over 335 million equestrian riders. This makes the Patent Cooperation Treaty (PCT), which protects patentable subjects internationally, highly important for equine-related innovators. The PCT simplifies the process of seeking patent protection across contracting countries by allowing inventors to file a single international patent application. This enables inventors to safeguard their inventions on a global scale in sectors that are highly international, like the equestrian industry. 

Conclusion 

The equestrian industry stands at the intersection of tradition and innovation. Utility patents offer protection for innovators in the equine world by providing them global protection for their invention. 

As the equestrian sector grows, the integration of technologies into both tack and breeding practices affect the comfort, performance, and safety of both horses and riders. Utility patents offer a potential framework for protecting these innovations, ensuring inventors can safeguard their contributions to the equine industry. International patent applications enable inventors to reach a wider market and streamline the process. As the equine industry continues to grow, patent protection is a valuable asset that will foster new innovations and a safer sport in the world of equestrianism. 

#WJLTA #UtilityPatents #EquestrianSports #Horses

By: Matthew Bellavia

Android devices must allow alternative options to the Google Play Store as soon as November 1, 2024. A federal judge ordered Google to enable developers to publish applications via third-party markets outside of the Google Play Store, and to allow alternative payment systems within these apps, marking a significant victory for developers. While the November 1 deadline is currently paused for an administrative stay, app developers are eager for the changes to arrive. One key player is Epic Games, the creator of the popular video game Fortnite, which generated over one-billion dollars in revenue from mobile apps before its removal. 

History of the Epic Games vs. Google Feud 

In 2020, Fortnite was one of the hottest video games in the world, with 350 million registered users worldwide. As a leader in the movement towards the free-to-play with in-app purchases business model for modern video games, Fortnite relied on purchases of virtual items in game to generate revenue. Epic Games decided to launch their own in-app payment method for purchasing items on mobile devices. This decision allowed them to circumvent Google’s typical 15-30% commission on all in-app transactions made through the Google Play Store and iOS App Store.  

Within hours, Google removed Fortnite from the Google Play Store, and Epic responded by filing an antitrust lawsuit. In December 2023, a jury found that Google turned its Google Play Store and billing service into an illegal monopoly. Now in October 2024, U.S. District Judge James Donato issued an injunction forcing Google to offer alternative app stores and payment methods on Android devices by November 1st, 2024 and for at least three years. As of October 18, 2024, this injunction is currently paused under administrative stay. 

Relevant Law 

The Epic v. Google jury found Google in violation of the Sherman Act – which outlaws monopolization and unreasonable restraint of trade. The jury affirmed that Google’s control over the app store and payment systems were sufficiently anti-competitive practices, and that Google had leveraged its market dominance through deals with partners to maintain its monopoly. 

Impact on Developers 

For developers, this ruling marks a significant victory within an industry where two tech giants have held enormous control over app distribution and monetization for over a decade. No longer confined by Google’s proprietary payment system, developers publishing to Android devices will be permitted to publish and collect payments without using Google Play Billing and without the 15-30% commission.  

These changes could result in a significant reduction of cost for consumers of these apps as profit margins are expanded for developers. Moreover, Google will no longer be screening all applications accessible to Android users, opening the door for additional variety, but also bad actors. Google is appealing the injunction, arguing sufficient competition exists between Apple and Google and warning of an increase in malware, violations of privacy, and other negative consequences of decentralizing the Android ecosystem.  

Impact on Consumers 

For users of Android devices, this change will bring benefits and drawbacks. Cheaper in-app purchases without Google’s tax could drive down prices, allowing consumers to enjoy the same services at a lower cost. Moreover, a wider selection of apps will be available to users without the need for Google’s stamp of approval. The drawback is additional risk regarding malware and abuse of privacy/data. Both Android and iOS are known for the strong security of their mobile devices – a direct result of the control and review their creators maintain. 

What about Apple? 

Wondering why Apple isn’t facing the same consequences as Google? You’re not alone. While Apple “won” their similar case against Epic in 2021, current developments are likely to bring additional scrutiny to Apple’s practices for years to come. In a similar lawsuit, Apple finally adopted RCS messaging, a protocol solving the iPhone’s inability to text efficiently with Androids, in the latest major iOS update. However, this seemingly simple change came only after the Department of Justice filed a lawsuit accusing Apple of deliberately making texting frustrating for Android users, a claim Apple denies. 

Takeaways and Predictions 

It should not come as a surprise that Google was unhappy with this development and is filing to appeal. As a defense, they will cite industry standards and the current competition between Google and Apple. If unsuccessful, this ruling will be another setback to Google, as it struggles to maintain its dominance over the information industry.  

Regardless of the outcome, this story demonstrates the increasing scrutiny of monopolistic practices driving the technology sector. Once the temporary stay is removed and the injunction takes effect, regulators, developers, and leaders of the technology industry will be watching to see how this ruling shapes the Android ecosystem. Will the marketplace diversify, or will Google’s security concerns come to light? One thing is for certain – Epic Games is happy with this decision. 

#antitrust #epicvgoogle #techlaw

By: Jacqueline Purmort-LaBue

Long gone are the days where tattooed ladies were a radical phenomenon for rabid observation in circuses, sideshows, and dime show museums. As of 2023, it was estimated that 32% of Americans have a tattoo, with 22% sporting more than one. Visible tattoos have become more prevalent in the workplace and general attitudes are more accepting than ever. 

Part of the popularization of tattoos and tattoo culture can be attributed to the rise of reality TV shows like Ink Master and LA Ink. Earlier this year, Kat Von D, a celebrity tattoo artist famous for her work on LA Ink and her cosmetics line, was sued by Jeffrey Sedlik for copyright infringement. The issue arose over an Instagram post depicting Kat Von D tattooing a portrait of jazz singer and songwriter, Miles Davis. The portrait is nearly identical to Sedlik’s photo of Davis published on the cover of JAZZIZ magazine, with Davis staring straight into the camera with one finger over his lips. 

Kat Von D won when a jury ruled unanimously that her reproduction in a tattoo did not violate copyright law. The lawsuit has become the latest battlefield to determine what constitutes “fair use” under the Copyright Act of 1976. The Act establishes the basis for existing copyright infringement law, which prohibits anyone from reproducing, distributing, performing, publicly delaying, or creating derivative works from a copyrighted work without permission from the copyright owner. The Act also establishes the legal concept of “fair use,” which permits creators to use limited portions of a copyrighted work without having to pay a fee to the copyright owner or ask for permission. Fair use prevents the rigid application of copyright law, encouraging creativity and allowing other creators to use and build upon prior works in a way that does not unfairly deprive copyright owners of the right to control and benefit from their works. The lawsuit claimed infringements based on the reuse of the photo on the tattoo itself, the social media posts by Kat Von D, and the sketch of the photo that Kat Von D used to design the tattoo. 

From Sedelik’s perspective, this case was about protecting the works of visual artists and their livelihoods. Although copyright is utilized to protect originality, the fair use doctrine functions to inspire creativity and allow for artists to build off one another. Here, the function and creation of a photograph and a tattoo are wildly distinct. Any tattoo artist can confirm that the process of tattooing is drastically different from other forms of expression. Drawings do not always translate to skin, and many tattoo artists spend years practicing on pig’s skin before they dip their needle into a live client. 

By utilizing the art of tattooing, Kat Von D added a layer of originality to the image. Tattoos are also living, breathing pieces of artwork. While a physical photograph or painting may “speak” to an individual, beckoning admiration from afar, tattoos are so meaningful to the wearer that they become integral to the individual’s own physical appearance and identity, embedded under the skin. 

If Kat Von D loses on appeal, the outcome could have wide implications and far-reaching consequences for the tattoo industry. Many tattoo artists rely on clients bringing in their own ideas and designs, sometimes sourced from artists discovered on Instagram or Pinterest. Some non-tattooing artists have found a way to receive recognition by offering “tattooing rights” on their online shop, but for the tattoo artists, this might mean being increasingly cautious about the kind of work they accept. On the client side, it might make it more difficult to get tattooed. 

While the jury found that the social media posts were protected by fair use, they also found that the two works in question were not substantially similar, avoiding the potentially broader question of fair use in the tattoo market, and leaving the opportunity open for further lawsuits on this issue. If the jury had determined that the two works were substantially similar and yet the social media posts were still covered under fair use, tattooing itself being enough of a modification of the original work to qualify as fair use would be a clearer precedent on the issue. 

For now, tattoo artists remain protected by fair use, but as the popularity of tattoos continues to soar, the legal landscape surrounding artistic ownership and creative expression will likely evolve, challenging both artists and clients to navigate an increasingly complex relationship with the art form. While many tattoo parlors, artists, customers, and fanatics are breathing a sigh of relief from this judgment, the outcome is not dispositive on future lawsuits and full protections have yet to be granted. The industry considers copyright provisions in tattooing waivers as a safeguard against future lawsuits while hoping that future court decisions will show sensitivity to the competing interests of both the artists and the client. 

Go ahead, book that Pinterest tattoo while you still can.

#WJLTA #copyrightlaw #IP #tattoos