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Consumer Digital Privacy 101: Simple Steps for a Safer Digital Life

/ Washington Journal of Law, Technology & Arts / Leave a comment
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By: Perla Khattar *

In an era characterized by ubiquitous data collection and increasingly sophisticated digital technologies, privacy has emerged as a crucial concern for consumers worldwide. As personal information becomes more vulnerable to exploitation, the importance of privacy management cannot be overstated. While regulatory measures and institutional safeguards such as privacy by design play an essential role in protecting user data, the responsibility of safeguarding privacy ultimately rests in the hands of individuals themselves in the absence of effective regulation.

While it is evident that comprehensive legal frameworks and industry practices are necessary to ensure the responsible handling of personal data, the limitations of such measures have become increasingly apparent. The pace of technological advancement often outstrips the capacity of regulations to keep up, leaving gaps in protection. Moreover, the sheer volume of data generated and the diversity of platforms and services utilized by individuals make it challenging for regulations to cover every aspect of privacy. This blog post aims to provide practical tips to help consumers establish new habits and make small changes to enhance their privacy protection.

These tips do not provide foolproof protection against sophisticated threats, but adopting privacy-conscious habits can bolster individual privacy resilience and help mitigate risks. The primary objective of this blog is to equip individuals with beginner-level tips for privacy management. This newfound awareness can help individuals make informed decisions about how their personal information is collected, used, and shared, and can prevent them from falling victim to scams or other forms of exploitation. By being aware of their data privacy rights, consumers can also hold companies and organizations accountable for how they handle their personal information, and can help to promote a culture of greater transparency and accountability in the handling of sensitive data. This blog aims to bridge the gap between theoretical privacy principles and practical implementation, empowering everyday consumers to navigate the digital landscape with greater confidence and privacy consciousness.

1.     Understanding The Alphabet Empire

It is widely believed that Google has engaged in shady privacy practices in the past. For example, the company has been criticized for collecting and using biometric personal information from its users without their knowledge or consent. Some have also criticized Google for not being transparent enough about its data collection and usage practices, and for not providing users with adequate control over their personal information. Overall, there is a perception that Google does not prioritize the privacy of its users, and that it is more focused on maximizing its own profits.

An Alternative to Google Docs

Google servers can see everything that is typed in the Google documents, simply because consumer’s work and data is not end-to-end encrypted. Google isn’t particularly transparent about what it is doing with the collected data, but it is assumed that the company is scanning and analyzing the contents for marketing purposes.

However, consumers wishing to collaborate in real time on documents can do so privately: platforms like Cryptpad and Skiff are similar to Google docs but are end-to-end encrypted, making it impossible for the company to access your work in progress. 

Search Data Collection

Google keeps a database on every single user, where every search query is added. Then, specific information is extrapolated like location, medical concerns or political views, and sexual preferences for marketing. Google collects everything users search for, and everything they decide not to search for: the moment the user types in the search bar, and gets suggestions for common questions asked, everything that was typed, regardless of whether the user pushed “enter” or not, is sent to the Google database.

This information is used to be broadcasted to thousands of companies in auctions where advertisers and data brokers are bidding to purchase data. Additionally, Google uses this information to target consumers with specific search results, or even manipulate or sensor results.

To avoid all this, consumers can switch to Startpage, a company that gives users Google search results without any of the trackers, leading to the ability of viewing proxy websites without revealing any personal information.

De-Googling a Phone

First, replace Google applications with an alternative: OSMAnd instead of Google Maps, New Pipe and Odysee instead of Youtube, Brave Browser instead of Chrome. Them, download applications from F-Droid or Aurora to avoid connecting to the Google Play Store. Finally, use an operating system other than Android, such as Graphene or Lineage.

2.     Recognizing The Importance of Virtual Private Networks

Some Virtual Private Networks (“VPN”) record consumer’s unencrypted information and unencrypted internet activity to sell it to third parties. Some other VPNs log consumer’s IP address and activity. Other VPNs demand access to photos, nearby Wi-Fi networks, and nearby Bluetooth devices in order to gather more data on the user.

In fact, 105 of the most popular VPNs are owned by just 24 companies. When searching for a VPN, consumers should look for products with no logging or low logging guarantees with paramount encryption, and choose the jurisdiction they’re connecting to carefully: in Switzerland, for example, the government can’t compel VPN providers to log IP addresses.

Here are some private VPNs that do not sell any information and that protect user’s information from Internet Service Providers: The Freedom of the Press Foundation’s shortlist includes Mullvad and ProtonVpn.

3.     Switching Browsers and Search Engines

Browsers and search engines often collect personal information from consumers in order to improve their services and provide more personalized experiences. This data can include information such as the consumer’s location, search history, and browsing habits. This data is typically collected through the use of cookies and other tracking technologies, which are small pieces of data that are stored on the consumer’s device and can be accessed by the browser or search engine. This data is often used to target advertising, to improve search results, and to develop new features and services. Overall, the collection of personal data by browsers and search engines can be both beneficial and potentially invasive, depending on how it is used and who has access to it.

General Idea

A browser is comparable to a car that takes consumers to their destination. Famous examples of browsers are: Chrome, Brave, and Firefox. A search engine, however, is comparable to the map that lets consumers arrive to the final destination, because search engines index all the sites on the internet. Famous examples of search engines are: Google Search, Bing, Yahoo.

Some companies have both a browser and a search engine: Brave has Brave browser and Brave Search Engine. DuckDuckGo which is a popular search engine now has a browser.

Consumers are free to choose which search engine to use in their browser URL bar: someone that uses Chrome, might set their search engine to Google. More private options for browsers and search engines include Brave Browser in combination with Brave Search.

Choosing the Best Browser

Brave has great built in privacy, built-in ad blocker and it prevents websites from fingerprinting the machine; these securities are also enabled by default.

Firefox is great for users wanting to customize their settings, because it has great extensions like the Facebook container that stops Facebook from tracking consumers. However, users wishing to use Firefox need to configure the privacy settings to their linking, as it is not a default in the product.

Tor is the ultimate private browser since it bounces the traffic off the browser to different nodes before reaching the final destination so that no single node knows both who originated the traffic and the final destination. However, although Tor is the go-to browser for anonymity, it makes browsing significantly slower.

Bounce Tracking and Debouncing

Sometimes, before taking consumers to a specific website, computers will bounce the user to several tracking websites before reaching the needed destination. This is because companies are getting sneaky in the way they track consumers.

When consumers are loading a website, they can sometimes see different URLs appearing on the bottom left of the page. Before being taken to the intended website, users are being bounced through tracking websites that collect personal information. This phenomenon is called bounce tracking.

Stopping this can be done in two ways: First, debouncing: some websites can learn which websites consumers are intending to visit, and therefore can skip over all the tracking websites, taking users straight to their destination. Brave has the only version that ships in the browser. Second, unlinkable bouncing: some websites will visit these tracking domains in a throw-away profile to decrease what the tracking site can learn about the consumer.

Browser Plugins

Browser plugins are pretty dangerous because they are able to capture passwords, credit card details, track browsing, insert advertisements and redirect traffic. Even an extension that does only minor things like checking for discounts, may require access to everything users do in browsers to function. Companies that provide browser plugins are not necessarily spying on users, but they can actually do so if they decide to. Sometimes these extensions are sold to shady companies, or hijacked by hackers.

The solution is to avoid installing plugins, and to delete the ones that are not in use. And if consumers decide to use one, they should absolutely trust the company before using the plugin and check for the permissions that are being granted. If a company doesn’t need access to everything a consumer is doing, then permissions need to be restricted to the strict necessary.

4.     Adopting Better Password Safety

Password safety is extremely important for protecting privacy. This is because a strong password is often the first line of defense against cyber-attacks. If a hacker is able to guess or gain access to a person’s password, they can potentially gain access to that person’s sensitive information, such as financial information, personal documents, and more. Furthermore, if a person uses the same password for multiple accounts, a hacker who gains access to one password can potentially gain access to all of that person’s accounts, which can be even more devastating. Therefore, it is crucial for people to use strong, unique passwords for each of their accounts, and to regularly update those passwords to ensure the continued protection of their privacy.

Shady Password Managers

Most commercial password managers have key loggers that are used to scan what consumers type. Therefore, password managers need to be reputable, ideally open source or be checked by third party audits. All passwords should be encrypted on the device itself, and encrypted at rest so that the service provider can never get access to consumer’s passwords.

Password Configuration

Simple passwords like “password” or “12345678” are one of the easiest ways to get a consumer’s account hacked. Passwords should be unique and randomly generated, with a different password for every account.

With a good and trusted password manager, users can remember only one secure master password and the application will randomly generate and store all the rest of them to make sure that inevitable data breaches don’t put all your accounts at risk.

Two-Factor Authentication

Consumers should always add two-factor authentication whenever possible, whether its required or not, because it makes a huge difference when it comes to protecting accounts.

Wherever supported, it is best to use a security key like the YubiKey. The text option might be easier, but it is less safe because hackers are notorious for performing “SIM Swaps” where they get the code routed to their device instead of the consumer’s. The authenticator applications like Okta are better than text, but the problem with authenticator applications is that it’s easier to steal the private key off the phone than off the YubiKey.

5.     Outsmarting Wi-Fi

When Wi-Fi is tuned on, the phone is constantly sending Wi-Fi probe requests, which are basically little packets of information that contain details about the phone. This information is broadcasted publicly for anyone to see. Essentially, the phone is going around announcing to any nearby Wi-Fi network that the phone exists.

Turning the Wi-Fi off when not in use is a great idea. But pressing the turn off Wi-Fi button doesn’t always mean that the action was successfully executed. If consumers have an android and they turn off their Wi-Fi, they won’t be connecting to a Wi-Fi network anymore, but their phone will still send out Wi-Fi probe requests. An additional step would be to switch off the “Wi-Fi scanning” in the settings. And on iOS, consumers can’t just toggle Wi-Fi off in the control center, it has to be done in the settings.

Final Thoughts

While it may be tempting to dismiss these beginner privacy tips as insignificant in the grand scheme of things, they actually possess the power to usher in a more sophisticated approach to privacy. True, they may not completely revolutionize consumers’ lives overnight, but they provide a solid foundation for living a privacy-conscious existence in today’s digital landscape.

By implementing these tips, consumers take proactive steps towards protecting their personal information, maintaining control over their digital footprint, and mitigating the risks associated with online vulnerabilities. Each small action, such as using a password manager, or encrypting communications contributes to a larger framework of privacy-conscious behavior. In the face of growing privacy concerns, it is crucial to remember that change begins at an individual level in the absence of legislation. By embracing these beginner privacy tips, consumers actively participate in a larger movement towards a privacy-conscious society, where our personal information remains secure and our digital lives remain private.

*Perla Khattar is an Attorney at the Beirut Bar Association & J.S.D. Candidate 2027, Notre Dame Law School.

Monster Energy vs. Everyone: Why is a drink company challenging video games for using the word “monster”?

/ Washington Journal of Law, Technology & Arts / Leave a comment
Photo by Harry Singh on Pexels.com

By: Perry Maybrown

Have you ever been playing Monster Hunter and thought, “Huh, this must be related to Monster Energy.” While I personally have never faced this conundrum, it’s a scenario that Monster Energy has been very worried about. So much so, that for the past few years they have been targeting a wide range of industries to protect their trademark of the word “monster.” Two notable attacks that have been revived by the media were against Pokémon for “Pocket Monster” and Capcom for their videogame franchise “Monster Hunter.” Both complaints were filed in Japan and promptly dismissed. 

This has not deterred the energy drink company in the slightest however, as they have recently sent a cease and desist letter to independent development studio Glowstick Entertainment for their game Dark Deception: Monsters & Mortals. In their letter, Monster Energy requests that Glowstick never again attempt to trademark something with the word “Monster,” or have any trademarks that could at all resemble their own. They go on to request that the logo of the game be modified and sent to them for approval. Monster asked Glowstick to refrain from using the colors green, white, and black (a task that is especially daunting considering the Glowstick logo is green on a black background). Furthermore, Monster required Glow Stick not emphasize the word “monster” more than any other in the title of their game.

Furious with these demands, founder and CEO of the studio, Vincent Livings, took to Twitter to air his complaints and share the cease and desist letter. This has led to extreme reactions from the Twitter sphere and news outlets which have shared the story. 

Are these reactions warranted? Or is Monster simply protecting its rightful trademark? 

A trademark can be composed of a variety of elements: words, images, sounds, even colors can be used as a way to denote a specific brand or product. What a trademark is not, is complete ownership of a single word, symbol or color in all situations. Rather, a trademark only protects the use of your mark in connection with similar goods or services. Boiling it down to the most basic level, infringement occurs when a consumer may become confused between two marks. This is referred to as the likelihood of confusion. 

The courts have determined a test and list of factors that they weigh when deciding infringement. On the west coast (9th Circuit) these are referred to as the Sleekcraft Factors. The factors are as follows:

(1) Strength or Weakness of the Plaintiff’s Mark. 

(2) Defendant’s Use of the Mark

(4) Actual Confusion.  

(5) Defendant’s Intent.  

(6) Marketing/Advertising Channels. 

(7) Consumer’s Degree of Care.  

(8) Product Line Expansion. 

(9) Other Factors.

On the east coast they are the polaroid factors, which are similar to Sleekcraft: 

(1) the strength of the plaintiff’s mark; 

(2) the degree of similarity between the two marks; 

(3) the proximity of the products; 

(4) the likelihood that the owner will bridge the gap; 

(5) evidence of actual confusion; (6) defendant’s good faith in adopting the mark; 

(7) the quality of defendant’s product; and 

(8) the sophistication of the consumers. will likely cause confusion with plaintiff’s mark.

While a court may review all of these factors to determine the likelihood of confusion, there are several that are most pivotal when reviewing the scant facts we know for Monster Energy. To start with, product line expansion refers to whether the goods and services are related and the likelihood of one company expanding into the others business. This again is to help figure out “likelihood of confusion” on the part of the consumers. For example, it’s easier to become confused between two purses both made by a company called Gucci, however consumers are less likely to relate the two if it’s a sink maker that goes by that name. 

In the case of Monster,it is critical to ask, how likely is a beverage manufacturer to enter the video game market? Not only are the two products completely unrelated, the video game industry is difficult to break into on a good day. 

Furthermore,  the strength of the mark is evaluated on a sliding scale, with the weakest being what is called a “generic mark.” Generic words do not receive trademark protection because everyone needs to use them to describe their business. For example, if I created a coffee company called Coffee Company that would be generic. Imagine if I could now prevent all other coffee companies from using the word “coffee.” That would be wild! 

Next up is determining how descriptive the trademark is. Basically, is your trademark just describing the thing you are selling? These types of trademarks usually do not receive protection, but can in certain instances. 

The strongest marks are fanciful, arbitrary or suggestive. A fanciful mark is the best one you can get from a legal standpoint, because it’s a word you just made up (think Pepsi, Kodak etc.). A suggestive mark is one that kind of sounds like the product (like Netflix). And finally is arbitrary, which is just a random word that is used on a product that may have meaning elsewhere but isn’t directly descriptive of the product itself (Apple Computers is a great example of this). The Monster Energy mark would likely either be considered arbitrary or suggestive. Maybe suggestive because its name implies that you get monstrous, or huge amounts of energy from it. Arbitrary perhaps because the monster seems unrelated to the beverage. 

Here is the issue for Monster; while it is arbitrary for their product in particular, the word is descriptive when it comes to the video games they are challenging. Take for example Monster Hunter, which is a game series where you… hunt monsters. Or Pocket Monsters, where you collect monsters, you can fit in your pocket. At worst the word may be considered generic as it is used so ubiquitously throughout the industry to describe games and their contents. 

This is important because courts are unwilling to impose trademark protections for generic marks, because of how damaging it could be to the market. While descriptive marks may receive some kind of protection it’s a challenge that requires a large amount of work from the company that wishes to secure the trademark. Thanks to this, courts would be even more unwilling to find in Monster’s favor and force video game companies to stop using such a descriptive term. 

Conclusion

Like the saying goes, “with great power comes great responsibility.” While trademark owners do have rights to that mark, their power comes with responsibility  as they must defend their mark or risk losing it. In that sense, it seems logical that Monster is so zealously fighting to keep the word “monster” out of other companies’ mouths. On the other hand, this overkill method to attack any use of such a common word isn’t a great look for the company. 

At the end of the day, the decision of whether infringement exists is for the courts to decide. And it’s Monster’s choice to spend the money getting to that point, win or lose. We don’t have all the facts for either of these cases, and only know one side of the story, so it’s difficult to say if there are more factors that could play into this issue. But for now, it seems to be David vs Goliath. And the public is on David’s side.

Tick-Tock, TikTok: Could the Party Actually Stop?

/ Washington Journal of Law, Technology & Arts / 1 Comment
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By: Enny Olaleye

Over the past couple years, the United States government has expressed several concerns about the potential security risks associated with TikTok, a popular social media application that has amassed over 1 billion active users every month. Some officials have suggested that TikTok could be used by the Chinese government to collect data on American citizens or to spread propaganda.

According to TikTok, the social media app serves as a platform for users to “come together to learn, be entertained, and grow their business, as they continue to create, discover and connect with a broader global community.” TikTok now serves as one of the largest worldwide social networks, coming in third after Facebook and Instagram. This is evidenced by its widely popular international status—approximately 150 million Americans alone are active members of the social media app—making up nearly half of the U.S. population. 

As a result of the app’s widespread popularity in the United States, government officials have become wary about the potential risks the social media app poses. In August 2020, former President Donald Trump issued an executive order that would have effectively banned TikTok in the US unless it was sold to an American company within 45 days. This order cited concerns about national security and the app’s handling of user data, as the US government was worried that user data could be accessed by the Chinese government. Additionally, the US government accused TikTok of censoring content that would be unfavorable to the Chinese Communist Party and allowing misinformation to spread on its platform. 

However, the ban was temporarily blocked by a federal judge and the Biden administration later put the order on hold to conduct a broader review of security risks posed by Chinese technology. In June 2021, President Biden signed an executive order that expanded the scope of previous orders related to Chinese-owned apps and other technology. The order aimed to protect US citizens’ sensitive data and prevent the Chinese government from gaining access to that data through apps like TikTok. In September 2021, the Biden administration announced that it would not pursue a ban on TikTok, but it would continue to monitor the app’s potential security risks.

In response, TikTok has repeatedly denied these allegations, saying that it stores U.S. user data on servers located in the U.S. and that it has never provided data to the Chinese government. The company has also taken steps to distance itself from its Chinese parent company, ByteDance, by appointing a U.S. CEO and creating a U.S.-based data center.

Unfortunately, TikTok’s actions have done little to appease the concerns raised by federal officials and have only led legislators to double down on taking action against the platform. As of March 2023, the Biden administration has called on TikTok’s parent company, ByteDance, to either sell the app or face a possible ban in the United States because of concerns about data privacy and national security. The White House has also signaled its support for draft legislation in the House of Representatives that would allow the federal government to regulate or ban technology produced by some foreign countries, including TikTok. The federal government and multiple states have also already banned TikTok on government devices. 

Thus, the question arises: “Can the federal government actually do that?” 

Well—not necessarily. First and foremost, the U.S. government does not have the authority to ban speech, as free speech is a right guaranteed to citizens under the First Amendment of the U.S. Constitution. Posts on TikTok are protected by the First Amendment since they are a form of speech. While the Biden Administration has replaced the Trump order with one that provides a more solid legal ground for potential action, it still cannot override the First Amendment protections afforded to speech on TikTok.

Further, if this issue is brought to the courts, proponents of a TikTok ban will most likely claim the national security risks posed by the app are self-evident. Proponents of a ban believe that TikTok’s relationship to China and how Chinese law requires companies to cooperate with all requests from Beijing’s security and intelligence services creates obvious security problems. However, that line of reasoning is unlikely to find support with federal judges, who will be weighing the potential security risks against the imposition of real-world restrictions on the rights of 150 million Americans to post and exercise free speech on an extremely popular platform. 

Even if judges were to rule that a TikTok ban is neutral when it comes to content and viewpoint, the government would still have to prove that the remedy is narrowly tailored to serve, at a minimum, a “significant government interest,” in order to justify a ban and the corresponding restriction on speech. To ensure narrow tailoring, the Supreme Court developed the standard of strict scrutiny when reviewing free speech cases. To satisfy strict scrutiny, the government must show that the law meets a compelling government interest and that the regulation is being implemented using the least restrictive means. However, narrow tailoring is not confined to strict scrutiny cases, as seen in McCullen v. Coakley, where the Court determined that a Massachusetts law regulating protests outside abortion clinics was not content based and, thus, not subject to strict scrutiny.

As of April 2023, there has been no federal legislation passed that would permit an outright ban of TikTok in the United States. While the First Amendment likely limits the government’s ability to ban the app outright, it could still target TikTok’s ability to conduct U.S.-based financial transactions. That includes potential restrictions on its relationship with Apple and Google’s mobile app stores, which would severely hamper TikTok’s growth. By targeting conduct instead of speech, such a restriction would be outside of the First Amendment’s protections.
Regardless, amid all this government action, there is one thing that has made itself apparent. As the federal government escalates its efforts against TikTok, it’s coming up against a stark reality: even a politically united Washington may not have the regulatory and legal powers to wipe TikTok off American phones.

Liability, Authorship, & Symmetrial Causation in AI-Generated Outputs

/ Washington Journal of Law, Technology & Arts / 1 Comment
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By: Jacob Alhadeff

Copyright has insufficiently analyzed causation for both authorship and liability because, until now, causation was relatively obvious. If someone creates a painting, then they caused the work and receive authorial rights. If it turned out that the painting was of Mickey Mouse, then that painter may be liable for an infringing reproduction. However, recent technological advances have challenged the element of causation in both authorship and infringement. In response, recent law and scholarship have begun to address these issues. However, because they have addressed causation in isolation, current analysis has provided logically or ethically insufficient answers. In other words, authorial causation has ignored potential implications for an entity’s infringement liability, and vice-versa. Regardless of how the law responds, generative AI will require copyright to explore and enumerate the previously assumed causation analyses for both infringement and authorship. This blog explores how generative AI exposes the logical inconsistencies that result from analyzing authorial causation without analyzing causation for infringing reproductions.

Generative AI largely requires the following process: (1) an original artist creates works, (2) a developer trains an AI model on these works, and (3) an end-user prompts the AI to generate an output, such as “a mouse in the style of Walt Disney.” This generative AI process presents a novel challenge for copyright in determining who or what caused the output because generative AI challenges conventional notions of creation.

Causing Infringement

Andersen et al. recently filed a complaint against Stability AI, one of the most popular text-to-art foundation models. This class action alleges that Stability AI is directly liable for infringing that result from end-user prompted generations. However, in a recent decision more closely analyzing causation and volition in infringement, the Ninth Circuit found that “direct liability must be premised on conduct that can reasonably be described as the direct cause of infringement.” Stability AI should not be found directly liable for infringing these artists’ copyright, in part because Stability AI cannot reasonably be said to be the direct cause of infringement. Such a finding would be similar to holding Google liable for reproducing images of Mickey Mouse on people’s computer screens when they search for “Mickey Mouse.”  

This lawsuit is particularly relevant since end-users have prompted thousands of generations that include the phrase “Mickey Mouse” and many appear substantially similar to Disney’s Mickey. If thousands of end-users have intentionally prompted the AI to generate Mickey Mouse, then what volitional conduct can most reasonably be described as the direct cause of infringement? It is clearly the end-user. However, what if the end-user simply prompted “a cartoon mouse” and the AI generated an infringing image of Mickey? Here, the end-user may not have intended to generate Mickey and reasonable notions of fairness may not find the end-user as the most direct cause of infringement. However, copyright is a strict liability tort, meaning that liability attaches regardless of a reproducer’s intent. Therefore, unless copyright applies an intentional or a negligence theory for direct liability, which it should not, then whomever or whatever is liable for infringing outputs shall be liable for both of the infringing outputs— “Mickey Mouse” and “a cartoon mouse.” Such an outcome not only feels deeply unfair, but it is unreasonable to say that the end-user is the direct cause of infringement when prompting “a cartoon mouse,” and vice versa. 

Cases called to answer similar questions have recently grappled with these same issues of volition and causation. Generally, courts have been hesitant to find companies liable for actions that are not reasonably deemed volitional conduct causing infringement. The court in Cartoon Network, for example, found that “volition is an important element of direct liability.” In the Loopnet case, the court found that “the Copyright Act… requires conduct by a person who causes in some meaningful way an infringement.” In this way, the law has so far mirrored our prior intuitions of fairness. Legal scholarship has noted that when copyright law has grappled with novel technology, it has found that causation in infringement requires volition that “can never be satisfied by machines.” This reasoning, as applied  to generative AI, may mean that an AI company should not normally be directly liable for outputs that infringe the reproduction right. 

Causing Authorship

This causation analysis has also begun for authorship rights. One copyright scholar compellingly argues that copyright law should explicitly enumerate a causal analysis for granting authorship rights. Such an analysis would follow tort law’s two step causation analysis including: (1) creation in fact and (2) legal creation. Aviv Gaon surveys authorial options in The Future of Copyright in the Age of AI, writing that there are those that favor assigning authorship to the end-user prompter, the AI developer, finding outputs joint works, or even attributing authorship to the AI itself. The simplest legal option would be to treat AI like a tool and grant authorship to the end-user. This is exactly how the law responded when photography challenged conventional notions of creativity and authorship. Opponents of finding photographers as authors argued that photography was “merely mechanical, with no place for… originality.” The Supreme Court in Burrow Giles instead found that the photographer “gives effect to the idea” and is the work’s “mastermind” deserving of copyright. 

However, treating AI like a conventional tool is an inconsistent oversimplification in the current context. Not only is it often less analogous to say that an end-user prompter is the ‘mastermind’ of the output, but AI presents a more attenuated causation analysis that should not result in  a copyright for all AI-generations. As an extreme example, recent AIs are employing other AIs as replicable agents. In these circumstances, a single prompt could catalyze one AI to automatically employ other AI agents to generate numerous potentially creative or infringing outputs. Here, the most closely linked human input would be a prompt that could not be said to have masterminded or caused the many resultant expressive outputs. Under Balganesh’s framework, no human could reasonably be found as the factual or legal cause of the output. Such use-cases will further challenge the law’s notions of foreseeability as reasonable causation becomes increasingly attenuated.

Importantly, in the face of this ongoing debate and scholarship, the Copyright Office recently made their determination on authorship for AI-generated works. In February 2023, the US Copyright Office amended its decision regarding Kristina Kashtanova’s comic book, Zarya of the Dawn, stating that the exclusively AI-generated content is not copyrightable.  Ms. Kashtanova created her comic book using Midjourney, a text-to-art AI, to generate much of the visual art involved. The copyright office stated that her “selection, coordination, and arrangement” of AI-generated images are copyrightable, but not the images themselves. The Office’s decision means that all exclusively AI-generated content, like natural phenomena, is not the type of content copyright protects and is freely accessible to all. The Office’s decision was based on their interpretation that “it was Midjourney—not Kashtanova—that originated the ‘traditional elements of authorship.’” The Office’s decision is appropriate policy, but when analyzed in conjunction with the current law on causation in infringement, it is inconsistent and may result in an asymmetrical allocation of the rights and duties that attend creation. Relevantly, how can a machine that is incapable of volition originate art? This is one of many ontological paradoxes that AI will present to law. 

Symmetrically Analyzing Causation

Two things are apparent. First, there is a beautiful symmetry in AI-generations being uncopyrightable, and the machines originating such works symmetrically do not have sufficient volition to infringe. If such a system persists, then copyright law may not play a major role in generative AI, though this is doubtful. Second, such inconsistencies inevitably result from causation analyses for mechanically analogous actions that only analyze one of infringement or authorship. Instead, I propose that copyright law symmetrically analyze mechanically analogous causation for both authorship and infringement of the reproduction right. Since copyright law has only recently begun analyzing causation, it is reasonable, and potentially desirable, that the law does not require this symmetrical causation. After all, the elements of authorship and infringement are usefully different. However, what has been consistent throughout copyright is that when an author creates, they risk both an infringing reproduction and the benefits of authorship rights. In other words, by painting, a painter may create a valuable copyrightable work, but they also may paint an infringing reproduction of Mickey Mouse. Asymmetrical causation for AI art could be analogized to the painter receiving authorship rights while the company that made the paintbrush being liable for the painter’s infringing reproductions. Such a result would not incentivize a painter to avoid infringement, and thereby improperly balance the risks and benefits of creation. Ultimately, if the law decides either the end-user or the AI company is the author, then the other entity should not be asymmetrically liable for infringing reproductions. Otherwise, the result will be ethically and logically inconsistent. After all, as Antony Honore wrote in Responsibility and Fault, in our outcome-based society and legal system, we receive potential benefit from and are responsible for the harms reasonably connected to our actions.

Dancing Around the Issue: Washington Lawmakers Grapple with State Regulation of Adult Entertainment

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By: Matt Williamson

When people think of Washington many things quickly come to mind: Apples, Planes, Rain, Grunge, Twilight; all understandable. Restrictive alcohol laws though? Not so much. 

Despite this, Washington maintains a near-total prohibition on any alcohol service in adult entertainment clubs–making it one of only a few states to do so. 

This year, a group of exotic entertainment advocates, working with state lawmakers, aimed to change this. The group helped introduce, and has lobbied for, the passage of SB 5614: A bill designed to reverse restrictions on alcohol service and allow strip clubs to apply for liquor licenses. 

While this might seem like a fairly humble goal, the policy change would represent a massive shift in the landscape of adult entertainment in Washington. Alongside the reversal of the alcohol restrictions, SB 5614 also contains a series of potentially hugely impactful provisions aimed at providing a safer, fairer, and more stable working environment for exotic dancers across the state. 

Why Alcohol Matters

To understand why the seemingly small change could mean so much to Washington-based dancers, one first has to understand the secondary effects this restriction creates.

Washington’s restriction on alcohol service in strip clubs stems not from statute, but administrative rules. The restrictions, enshrined in WAC 314-11-050, were established by the Washington State Liquor and Cannabis Board, and prohibit the sale of alcohol in any establishment where certain types of activity take place. Because the restricting activities include stripping, a fairly essential element of strip clubs, the rule establishes a de facto exclusion on alcohol sales in strip clubs. 

What this creates is a major economic problem that club owners and management must combat. Without alcohol sales, these clubs are cut off from a huge source of revenue, and must turn to other means to extract money from patrons and staff alike. 

This is the landscape that has produced one of the most hated aspects of exotic dancing in Washington: Dancer fees. Rather than paying them, many clubs actually charge dancers a fee to perform, arguing that they will earn money through tips, and that the fees are required to be able to maintain the club’s business viability. Naturally, this contributes to the financial instability of the profession, as dancers often encounter shifts where they make little to no money, and are nonetheless forced to pay for the opportunity. 

It’s not just the economics either. Many dancers argue that the lack of alcohol sales in Washington clubs robs these establishments of the ability to create a social or entertaining environment and restricts them to a customer base exclusively seeking a sexual experience. Dancers have noted that Washington clubs have a distinctly sexually-focused vibe, as opposed to Oregon clubs, where alcohol is served and the environment tends to be more akin to a bar. 

Moreover, the added revenue from alcohol sales presents advocates with an opportunity to invest in protections for exotic dancers that have long been missing from the industry. SB 5416 includes provisions requiring better security in clubs, mandatory training for dancers including on financial security planning, and prohibitions on predatory club fees and penalties. 

Legislative Struggles

Despite significant support from groups like Strippers are Workers, which has championed the bill, it sadly seems as though SB 5416 is unlikely to pass the state legislature this year. 

However, advocates can take at least some solace in the nature of its demise: SB 5416 has not failed to receive enough votes at any of the crucial steps in the legislative process, but instead ran afoul of the greatest obstacle any piece of Washington legislation ever faces–the absurdly compacted legislative schedule.

Washington has a part-time legislature, which means that Legislators in the House and Senate only meet for between 3 and 4 months a year. When considered in light of the thousands of bills that are introduced every year, and the numerous procedural steps each must traverse, the massive scale of the scheduling problem quickly comes into focus. 

When SB 5416 passed the Senate in early March, it seemed to have serious momentum, receiving significant bipartisan support in that chamber and quickly being placed on the agenda of the House Committee on Labor & Workplace Standards. 

But sadly, things quickly seemed to fizzle as some notes of opposition arose in the House, and the crush of bills began to overwhelm policy committees. Now, as the cutoff for bills advancing out of House policy committees has passed, and the bill remains with the Regulated Substances & Gaming Committee, it seems all but doomed.

Conclusion

This seems an unworthy end for a bill that seeks to strike at the heart of a serious issue for thousands of working Washingtonians. Exotic dancers deserve so much better than the often predatory working environments they encounter in Washington clubs, and it is clear that repealing our state’s misguided alcohol restrictions could go a long way towards addressing the underlying causes of these conditions and providing dancers with the support and protection they need. Hopefully, advocates and their allies will get another shot at passing this legislation soon, and next time legislators will find the time to seriously consider and pass it.