October 28, 2025
By Emily Poler
Remember the felonious financial and pharmaceutical mogul Martin “Pharma Bro” Shkreli? Back in 2015 he paid $2 million for the only copy of Once Upon a Time in Shaolin (the “Album”), a double CD by hip-hop collective Wu-Tang Clan. According to the Clan, their aim was to make a singular recording on the level of fine art (it also came in a fancy box) as a commentary on the devaluation of music in a digital world. Wu-Tang, to ensure the Album remained unique, required Shkreli to sign a restrictive purchase agreement preventing him or any subsequent buyer from copying or exploiting the album beyond certain permitted uses, such as a private listening party, for 88 years. What’s more, Shkreli (and any subsequent owner) could only resell the Album to a third-party under those same terms and conditions.
As we all know, things soon went downhill for the much-reviled Shkreli. In 2017, he was convicted on federal securities fraud charges and sentenced to seven years in prison and ordered to forfeit over $7 million in assets, including the Album. The forfeiture order also barred Shkreli from acting in any way that would harm the value of the forfeited assets.
Fast forward a few years to 2021, when PleasrDAO, a “Decentralized Autonomous Organization” of digital artists and NFT collectors who buy, fund and display culturally significant media for the purpose of creating “unique experiences,” purchased the Album for $4 million in crypto (naturally), later making a brief sample of it available to anyone who bought a $1 NFT it issued. (Each purchase reduces the time until the album can be revealed in its entirety by 88 seconds — the “unique experience” in this case).
Of course, Shkreli couldn’t just fade away into the background of the story. After his release from prison in 2022, Shkreli repeatedly proclaimed on social media (without any acknowledgment of the irony) that he had retained digital copies of the Album. He also hosted a “listening party” on Xwitter where almost 5,000 people listened to his broadcast of the album. Maybe he just forgot the rules? Oh, probably not.
Unsurprisingly, PleasrDAO was not happy with this. The organization filed a complaint against Shkreli alleging, among other things, violations of the Defend Trade Secrets Act (“DTSA”) and state trade secret law. Shkreli moved to dismiss these claims on grounds that PleasrDAO hadn’t alleged a “secret” sufficient to bring the album within the protection of trade secret law.
For those who may not be familiar with the DTSA and state trade secret law, they apply to a range of “financial, business, scientific, technical, economic, or engineering information….” Generally, this means things like customer lists, formulas, procedures, etc. To qualify for protection under these laws, the party possessing the information has to show that it has taken efforts to guard its secrecy and/or that it could not be easily duplicated by others.
Here’s where things get interesting. On September 25, 2025, the Court denied Shkreli’s motion to dismiss PleasrDAO’s trade secret claims, finding that, while ”the Album does not fit squarely within a category of business information or data that is traditionally protectable as trade secrets…,” at least at this stage of the litigation, the Plaintiff had adequately alleged that the Album could qualify as a trade secret. Why? Because the Court recognized the album was “subject to significant restrictions regarding its distribution” as Plaintiff took significant measures to protect its secrecy, and its value rests on the fact that it hadn’t been heard by the public at large. Here, the Court noted that the Album, unlike musical works that other courts previously found were NOT trade secrets, derived its value from the fact that it was intentionally “secret” as opposed to just unreleased.
This is an interesting decision and perhaps wholly unique given the weird facts of the case — an Album with only one copy, subject to an agreement prohibiting its duplication, and also worth a lot of money. My one big question, though, is whether the Album really qualifies as either “financial, business, scientific, technical, economic, or engineering information,” per the accepted definition of a trade secret. Just based on what trade secret law generally protects — financial data, prototypes, business plans — I’m not so sure. That said, plenty of courts have held that trade secret law protects all forms of business information, and while the Album doesn’t feel like business information to me, I can’t really come up with a good dividing line for what is or isn’t business information. This is particularly true given that the value of the Album is rooted in its being secret, and that PleasrDAO is literally in the business of providing “unique experiences,” which in this case is based on its method of slowly revealing that secret through its NFT offering.
In terms of wider implications, it’s conceivable that classifying this Album as a trade secret may open the possibility of a new category of trade secrets and encourage other creators and owners of art to try and protect their works under relevant law, especially as it pertains to digital art that is easily copyable but whose value is based on limiting access. The whole thing might, as in the title of one of the best-known Wu-Tang tracks, “Bring Da Ruckus” to our traditionally accepted definition of trade secrets.
October 21, 2025
By Laura Trachtman
Did you ever wonder whether you’d need to revisit the issue of whether slavery still exists in the United States of America in this, the Year of Our Lord 2025, 160 years after the end of the Civil War? If you did, count yourself lucky, Dear Reader, because we have a humdinger of a case, Yeend et al. v. Akima Global Services, which is currently pending in the Western District of New York.
The Plaintiffs are a certified class of noncitizens (ICE’s term) who were or are detained in the Buffalo Federal Detention Facility, which is operated by Akima Global Services ( “AGS”), a for-profit corporation. The Plaintiffs allege that, not only were they forced to work for AGS in violation of the Trafficking Victims Protection Reauthorization Act (“TVPRA”), but that, in violation of New York Labor Law and Federal Labor Standards Act, they were paid a whopping $1.00 per day, and that this served to unjustly enrich Defendant.
Defendant moved for summary judgment on all of Plaintiffs’ claims. On the TVPRA, Defendant claimed that Plaintiffs were not held in involuntary servitude “threatened with or subjected to serious harm or any other coercion,” and Plaintiffs “cannot prove that Defendant knowingly coerced their labor.” WOW is that not an argument I would want to present to the judge. The Court was not impressed with Defendant’s arguments, and noted that Plaintiffs submitted declarations from detainees who claimed they were subject to collective punishment including a housing-unit wide “shakedown” by dozens of Defendant’s officers while Defendant’s supervisory officer claimed that he did not recall the specifics of that event.
Defendant argued that Plaintiffs’ New York State Labor Law and FLSA claims should be dismissed because Plaintiffs were not “employees” and, therefore, not within the protections of those laws. Here, Defendant relied on case law addressing the application of New York State Labor Law to prisoners. In denying the Defendant’s motion, the Court noted that Defendant’s reliance on case law concerning the labor law’s application to prisoners in prisons is not persuasive when it comes to the labor law’s application to detainees in detention centers. Furthermore, the Court cited to Plaintiffs’ argument that:
AGS’s supervision of the V[oluntary] W[ork] P[rogram, wherein a detainee may “volunteer” to work in order to earn money for her or his commissary] clearly evinces the control of an employer. AGS assigns detainees their jobs and determines workers’ shifts. . . . It provides job training to detainee workers. . . . AGS maintains records of which detainees performed which jobs on each day. . . . AGS staff supervise detainee workers to ensure they perform their job adequately and they can fire detainees for poor performance. . . . AGS provides detainees with the materials and supplies they need to perform their jobs. . . . AGS pays detainees by depositing pay directly into workers’ commissary accounts and keeps records of those payments. . . . AGS determined that detainees would be paid $1 per day of work and no more than $5 per week, regardless of the number of hours or days worked. . . . In short, AGS controls all aspects of VWP participants’ job performance, from hiring, training, and supervising to setting pay policies and depositing funds into workers’ accounts.
Finally, the Court addressed Defendant’s motion for summary judgment against Plaintiffs’ claim for unjust enrichment, wherein Plaintiffs essentially argued that Defendant was becoming rich off of Plaintiffs’ slave labor. Defendant argued that Plaintiffs’ unjust enrichment claims failed because Plaintiffs have not demonstrated that any of their labor directly benefitted Defendant, in part because the Contract did not obligate Defendant to provide various services which detainees performed. The Court found this argument contrary to contemporaneous documents in the Court record, noting specifically that Defendant’s President and corporate representative testified during a deposition that, in essence, that AGS relied on the detainees working in the kitchen to make AGS profitable. Please recall that these detainees were paid $1.00 per day; that’s 12.5 cents per hour for an 8 hour work day, and less if they worked more.
Take a moment to re-read the foregoing paragraph. In other words, these detainees are human beings who are forced to work for ONE DOLLAR A DAY so a corporation can make a profit. Consider that this is happening in America today. (And before you scoff that “this couldn’t ever happen to me – I’m an American citizen!” please be aware that over 170 American citizens have been detained by ICE at raids and protests. Furthermore, United States Army veterans have been injured and arrested at protests against ICE.)
The Thirteenth Amendment prohibits slavery or involuntary servitude in the United States, yet detainees, who haven’t been convicted of a crime, are literally forced to work for $1.00 per day so a corporation can make money. If that isn’t involuntary servitude, I don’t know what is.
October 14, 2025
By Emily Poler
I previously wrote about the US Copyright Office’s policy on works created with AI and the decision in Thaler v. Perlmutter, which denied copyright registration for a work listing an AI platform as its sole author. In that post, I predicted we’ll soon see litigation over which elements of work created with AI can be copyrighted.
While I’m pretty sure those suits will start to pop up, right now I want to talk about another case where the Copyright Office decided that a work created with AI was ineligible for copyright protection. This case, Allen v. Perlmutter, also raises some of the issues I noted in another recent post where I suggested it might be time to reconsider some of the policies underlying US copyright law in light of how much has changed since the US Constitution and the first copyright law were created in the 18th Century.
The story: Jason Allen created an image titled Théâtre D’opéra Spatial using Midjourney AI and entered it in the 2022 Colorado State Fair’s annual fine art competition, where it won a prize. The US Copyright Office, however, was less impressed and denied his application for copyright protection, finding that it was created by Midjourney. Allen then filed suit challenging that decision. (Before diving in, two notes. One, H/T to Paul LiCalsi for pointing this case out to me. Two, in case you’re wondering, Shira Perlmutter, the defendant in both Thaler and Allen was, until recently, the Director of the US Copyright Office).
Some background. To be eligible for a copyright, a work must be “original” and have an “author.” Of course, the law has long recognized that humans create copyrightable materials using machines all the time. In 1863’s Burrow-Giles Lithographic Co. v. Sarony, the Supreme Court found Napoleon Sarony’s photograph of Oscar Wilde was eligible for copyright protection, rejecting Plaintiff’s argument that photography is a mechanical process devoid of human authorship. The Court ruled that Sarony’s numerous creative choices in composing the photo meant he was the author of the work and, therefore, should be treated as such under the Copyright Act. Since then, courts, including the Supreme Court, have repeatedly held that only a minimal degree of creativity is required for something to be copyrighted.
In this present case, Allen created his artwork by inputting many, many text prompts (over 600!!) into Midjourney to get the result he wanted out of the AI. Also, once he finished creating that initial image, he tweaked and upscaled it using additional software like Adobe Photoshop. The Copyright Office, nonetheless, denied registration for this work, finding that it lacked the “traditional elements of authorship” because Allen “did not paint, sketch, color, or otherwise fix…” any portion of the image.
However, as Allen’s attorney points out in his lawsuit, there is no legal definition of the “traditional elements of authorship” and, what’s more, creativity, not the actual labor of producing a work, is the hallmark of authorship under the Copyright Act.
What to make of this case? Well, for starters, I’m curious to see the Copyright Office’s response regarding its narrow and archaic “traditional elements of authorship.” I imagine it’s going to be hard, if not impossible, to claim those can’t include use of a machine because, well, most everything that is obviously eligible for copyright protection in the 21st Century (music, movies, photography, etc.) uses hardware and software. Also, I wonder the extent to which some of the issues in this case reflect a basic uncertainty about how to characterize and appraise the skills (conceiving and refining detailed prompts) Allen employed to get Midjourney to create the work, compared to what we traditionally think of as visual art skills (painting and drawing). And, elaborating on that last point, how do we define creativity in light of all of the crude AI slop out there? (One example: check out the chair in this clip when the reporter retakes her seat.) Do we need to make some big decisions about what qualifies as helping “to promote the Progress of Science and useful Arts” (the purpose of the Copyright Act) by taking into account that some created work is good, borne of inspiration, purpose and ever-evolving skills, while a lot of stuff that gets made is just plain lazy, bad and crudely functional? Tough calls lie ahead.
October 7, 2025
By Laura Trachtman
I started this series because, at first glance, I was irritated and vexed at how nonsensical and idiotic this Executive Order was. Now that I’ve dug in and really spent time thinking about it, I’ve realized that this is an incredibly dangerous EO, as through its issuance, President Trump usurped the power of the Legislative and Judicial Branches, and has declared open war on Americans. Friends, if you aren’t worried, you should be.
In my previous posts about President Trump’s Executive Order, we discussed his blatant hypocrisy and pandering to bigots in determining that sex is a binary construct. We’re going to continue our examination of the third part of this policy, how it is perverting the Equal Employment Opportunity Commission’s mission, and how the Executive Branch has failed to respect the Judicial Branch’s authority to interpret laws and set precedent as well as the Legislative Branch’s authority to enact laws and dictate their purpose.
Section 3 states in pertinent part:
(d) The Secretaries of State and Homeland Security, and the Director of the Office of Personnel Management, shall implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex, as defined under section 2 of this order; and the Director of the Office of Personnel Management shall ensure that applicable personnel records accurately report Federal employees’ sex, as defined by section 2 of this order.
(e) Agencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages. Agency forms that require an individual’s sex shall list male or female, and shall not request gender identity. Agencies shall take all necessary steps, as permitted by law, to end the Federal funding of gender ideology.
(f) The prior Administration argued that the Supreme Court’s decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act. This position is legally untenable and has harmed women. The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities. In addition, the Attorney General shall issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under Constitutional and statutory precedent.
(g) Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.
While Section 3(d) isn’t the main thrust of today’s post, I cannot let it pass uncommented upon. What this does is it misgenders those individuals who have already corrected their gender identity. As a brief reminder, Section 2 forces individuals to identify with the gender they had “at conception”; as another brief reminder, this exposes this policy as written by idiots as everyone is female at conception (which is why everyone has nipples). The practical effect of this policy is that individuals who present and identify as female, although assigned the male gender at birth, will be forcibly reclassified as male, and those who present and identify as male, although assigned the female gender at birth, will be forcibly reclassified as female. In an ironic twist, this will force trans men to use female bathrooms – which, as we discussed in an earlier post on this topic, will force men into women’s bathrooms and into women’s domestic violence shelters, which are two issues that this Executive Order allegedly sought to correct. As I said, this was written by idiots.
However, Sections 3(e) and (g) this Executive Order are significantly more dangerous than I initially anticipated, as they serve to declare war on the trans community. This is eloquently and briefly described in the resignation email of Marc Byron Seawright, former Director of Information Governance and Strategy, which can be found here. In this email, Mr. Seawright noted that:
As a transgender and queer man, I have experienced direct and escalating harm in the form of open hostility toward LGBTQ+ people along with internal agency actions that undermine my credibility, diminish my role, and isolate me from decision-making. Until now, my accomplishments have been consistently praised and highly rated. Now, I am systematically devalued. I have been excluded from discussions where my expertise was once sought, and my professional recommendations have been disregarded without justification. I endure passive exclusion, professional isolation, and a hostile work environment because who I am does not align with the anti LGBTQ+ rhetoric of this interim [EEOC] administration.
This is wildly alarming. The EEOC, the executive agency specifically tasked with prosecuting discrimination, has itself become the catspaw of this transphobic Administration. This transformation of the EEOC defeats the purpose of the legislation that created it and fails to accord trans Americans their Constitutionally guaranteed rights to equal protection and thus takes power from Congress, which enacted this legislation.
But wait, there’s more. President Trump’s directive in Section 3(f) to ignore the decision issued by the Supreme Court of the United States in Bostock v. Clayton County (2020) is nothing less than a usurpation of the power of the Judicial Branch and an affront to our system of government. Critically, this also underscores the Trump Administration’s declaration of war on queer and trans individuals by allowing employers to fire individuals simply for being queer or trans, which SCOTUS in Bostock v. Clayton County determined was a violation of Title VII of the Civil Rights Act, and thus illegal. Now, per President Trump’s Executive Order, that’s actually totally fine.
So now, where does a trans person turn should they be discriminated against in employment? They have no protections under the EEOC, the federal agency tasked with preventing and remedying illegal discrimination. We can hope that our trans friend lives in a state (or city) which has enacted strict anti-discrimination laws and can turn to that entity for assistance, but with this Administration challenging the foundation blocks of our very government, I am left to wonder how long until the Trump Administration takes aim at the Tenth Amendment. So far, President Trump has issued this Executive Order which has disregarded the powers of the Judicial Branch and the Legislative Branch; how long until President Trump takes aim at the powers reserved to the States?
September 30, 2025
By Emily Poler
Both kinds of people — lawyers and non-lawyers — often tell me they could never be a litigator. Why? Because they hate confrontation. Well, here’s a secret for you: Notwithstanding my 20-plus years litigating difficult disputes, I don’t enjoy it much myself. But of course, it comes with the territory. So how do I deal with confrontation? And, also, why be a litigator if I’m not so keen on the conflict part of my job?
First, let me make one thing clear: Not every relationship with opposing counsel is contentious. There are many cases when I have a good working relationship with opposing counsel, at least most (or some) of the time. In such cases, there will certainly be moments where opposing counsel and I push and shove or throw an elbow. However, there is usually a level of mutual respect that keeps things relatively cool. Plus, we usually share the understanding that our respective clients naturally have opposing views and, despite that, it’s our job to move the case toward a resolution.
Unfortunately, however, those occasions when I have an amicable working relationship with opposing counsel make up the minority. Matters are usually more antagonistic, and while I certainly try to be respectful of my adversaries in those cases, I’m only human — and if someone tries to dunk on me, I will give as good as I get.
However, that doesn’t mean that I hit back the same as how they come at me. Or, put bluntly, when an opponent acts unprofessionally, shouting and threatening, I don’t play like that.
One of the best ways I’ve found to deal with cranky opponents is to be true to who I am. I realize the word “authenticity” has been overused to the point of meaninglessness, but it’s pretty apt here. I am not a screamer. It’s just not how I communicate. There are a couple of reasons for this, and maybe an exploration of why could be a post for another time, but basically, any attorney who aggressively rants and raves makes me embarrassed for our profession. And I am not going to pile on that kind of undignified behavior.
As a result, I deal with unpleasant adversaries on my terms. If someone screams at me, I will respond calmly and in a measured way. If they keep banging on, and particularly if they insult me or my client, I will hang up the phone or walk away from the meeting.
Similarly, as will surprise nobody alive in the year 2025, some people are more comfortable bending facts or ignoring them all together. Again, I am not one of those. Instead, being a great big nerd, my approach is to show up to every interaction, negotiation and trial 100 percent more prepared than my adversary, in touch with reality, equipped with foreknowledge of potential problems and armed with an arsenal of viable solutions.
While an obnoxious adversary can drive anyone to distraction, throughout the battle I really, really, really try to keep my eyes on the ultimate prize my client is after. And that is what I view as being at the heart of my role in every case and, to answer the question I raised in the first paragraph, the heart of why I’m a litigator. I’m here to help people, doing a job, representing my clients, and bringing my experience and expertise to achieve their desired goal. Pettiness, anger, and loud, loathsome behavior won’t get us to the results we want.
And, to quote Mr. Dylan, it ain’t me, babe.
