March 19, 2024
I’ve posted quite a bit about the growing legal battles involving AI companies, copyright infringement, and the right of publicity. These are still early days in the evolution of AI so it’s hard to envision all the ways the technology will develop and be utilized, but I predict AI is going to come up against even more existing intellectual property laws — specifically, trademark law.
For example, in its lawsuit against Open AI and others (which I wrote about here), the New York Times Company alleged the Defendants engaged in trademark dilution. To take a step back, trademark dilution happens when someone uses a “famous” trademark (think Nike, McDonalds, UPS, etc.) without permission, in a way that weakens or otherwise harms the reputation of the mark’s owner. This could happen when an AI platform, in response to a user query, delivers flat-out wrong or offensive content and attributes it to a famous brand such as the New York Times. Thus, according to the Times’ complaint, when asked “what the Times said are ‘the 15 most heart-healthy foods to eat,’” Bing Chat (a Microsoft AI product) responded with, among other things, “red wine (in moderation).” However, the actual Times article on the subject “did not provide a list of heart-healthy foods and did not even mention 12 of the 15 foods identified by Bing Chat (including red wine).” Who knows where Bing got its info from, but if the misinformation and misattribution causes people to think less of the “newspaper of record,” that could be construed as trademark dilution.
There are, however, potential pitfalls for brands who want to use trademark dilution to push back against AI platforms. It’s difficult to discover, expensive to pursue and there can be a lot of ambiguity about whether a brand is “famous” and able to be significantly harmed by trademark dilution. In the New York Times’ case, the media giant has the resources to police the Internet and to file suits; nor should there be any dispute that is a “famous” brand with a reputation that is vitally important. But smaller companies may not have the resources to search for situations where AI platforms incorrectly attribute information, or have a platform visible enough to meaningfully correct the record. Plus, calculating the brand damage from AI “hallucinations” will be very difficult and costly. Also, this area of the law does nothing for brands that aren’t “famous.”
Another area where trademark law and AI seem destined to face off is under the sections of the Lanham Act — the Federal trademark law — that allows celebrities to sue for non-consensual use of their persona in a way that leads to consumer confusion, or others to sue for false advertising that influences consumer purchasing decisions. AI makes it pretty easy to manipulate a celebrity’s (or anyone’s) image or video to do and say whatever a user wants, which opens up all sorts of troublesome trademark possibilities.
Again, there are a couple of serious limitations here. For starters, the false endorsement prong likely only applies to celebrities or others who are well-known and does little to protect the rest of us. Perhaps more important (and terrifying), it seems likely that there will be significant issues in applying the Lanham Act’s provisions on false advertising in the context of deepfakes in political campaigns — like, for example, the recent robocall in advance of the New Hampshire primary that sounded like it was from President Biden. To avoid problems with the First Amendment, the Lanham Act is limited to commercial speech and thus will be largely useless for dealing with this type of AI abuse.
One other potentially interesting (and creepy) area where AI and trademark law might intersect is when it comes to humans making purchasing decisions through an AI interface. For example, a user tells a chatbot to order a case of “ShieldSafe disinfecting wipes,” but what shows up on their porch is a case of “ShieldPro disinfecting wipes” (hat tip to ChatGPT for suggesting these fictional names). While the mistake of a few letters might mean nothing to an algorithm (or even to a consumer who just wants to clean a toilet), it’s certainly going to anger a ShieldSafe Corp. that wants to prevent copycat companies from stealing their customers (and keep their business from going down that aforementioned toilet).
March 5, 2024
Continuing from a previous post reflecting on the seven years since starting my law practice, here are a few more things I’ve learned along the way about business development, entrepreneurship, and growing a law firm. Hopefully, some (or all) resonate with anyone working to grow their career or business.
When I first started my firm, and for several years after, I spent a lot of time thinking there had to be a clear and logical blueprint for business development. If I could just find the right program, join the ideal networking group, or read the best book on the subject, surely I’d be able to grow my business to where I felt it should be. It was particularly easy to succumb to this kind of thinking when I was feeling unsure about what I was doing, if I hadn’t hit a milestone I wanted to reach, or if I saw someone else posting how their firm was killing it. Obviously, my not measuring up was because I hadn’t yet found the right program, group, or book.
I now know that’s not how it works. Having tried a lot of programs, joined (and left) many networking groups, and read a slew of books, I’ve come to the most definite conclusion that, at least for me, there is no one perfect formula to grow a law firm (or any business). I’m sure the various programs, groups, and books work for some people. I, however, am not one of them. And I’m quite certain I’m not alone in that. So, with that in mind, what has worked for me?
First, starting and growing a business takes confidence and the ability to put yourself out there, in emotional and financial harm’s way. It’s a big risk. Some people have no problem here; but again, I am not one of them and the prescriptions of a given program, group, or book weren’t going to change this for me. The solution could only come from within. And that meant spending time thinking about what made it so hard for me to have the confidence that comes so easily to others. Ultimately, I understood it was a fear of criticism. I’ve talked about this a bit before in that previous post, but the tl;dr is I was always terrified that if I wrote something on LinkedIn, on my blog, or in an email, someone somewhere was going to say it was stupid. I suspect some of this fear has to do with gender, but that’s an issue for another day.
What helped me get over this? It began by simply recognizing and acknowledging the issue. Therapy (duh!!) was big. Meditation helped as well. I also work with a fabulous business coach who often gives me new ways of thinking about things. I have a bunch of different pieces of advice she’s given me over the years written down where I can refer to them when needed (frequently!). One of my favorites is a reminder that we all tell ourselves stories and hold certain beliefs, but we need to look at data to see if the stories have any truth to them. I also work with a wonderful writer and editor on a lot of my posts and articles. This allows me to get my ideas down quickly without constantly judging or second-guessing myself, knowing someone else will make sure there are no incomplete thoughts or missing punctuation.
Secondly, I’ve learned that sometimes doing something is better than doing something perfectly — and way better than doing nothing. I, like many others who have gone to fancy schools, worked for BigLaw, and grabbed at every gold ring along the way, tend to think that everything I do has to be perfect. Obviously, with legal work, exactitude is crucial. However, when it comes to business development, I realized that by getting bogged down in the search for the perfect way to do something, I often didn’t get anything done. Again, outside help has been really important for me in putting aside my urge toward perfection and focusing on just getting things done even if they’re not 100% perfect. Over time, paying attention to what works and what doesn’t has helped me refine my approach so that even when I know I’m not perfect, I keep moving in the right direction.
Which brings me to a third thing that’s helped me: consistency. In other words, practice. For me, the act of doing something over and over again has been hugely helpful in becoming more comfortable with it. Truthfully, I’m not sure how exactly I stumbled on this, but it works for me. What you’re reading right now is a perfect example: when I started writing these posts, each and every one was a torturous struggle through hours of pain. Now several years and countless posts later, simply through repetition, the process has become much easier. And that, I assure you, feels great.
February 20, 2024
The Second Circuit recently issued a(nother) decision in the dispute between bridalwear designer Hayley Paige Gutman and her former employer, JLM Couture, Inc. over ownership of Instagram and Pinterest accounts Gutman created while employed by JLM. You can find background on this case here.
The Second Circuit reversed the District Court’s 2022 decision, which held JLM owned the accounts. More notably, the Second Circuit rejected the lower court’s six factor test considering how the account describes itself; whether the account was promoted on the employer entity’s advertisements or publicity materials and linked to other internet platforms of the entity; whether it promoted the business; and whether employees of the entity (other than the account creator) had access to and managed the account.
In reversing the lower court, the Second Circuit held social media accounts “should be treated in the first instance like any other form of property,” and, in figuring out who currently owns one, courts should look to who owned it when it was created and whether there is any evidence the account was ever transferred to someone else. “[T]he law has long accommodated new technologies within existing legal frameworks,” the Circuit wrote. Translation: “Enough with the new tests already. We have plenty.”
Overall, the Second Circuit’s conclusion lines up with what I suggested in a New York Law Journal article last month: Who Owns a Social Media Account? It’s Pretty Simple, Really. The article is paywalled, but the gist is this: Courts should stop coming up with new tests to determine whether a social media account belongs to a business or an individual associated with the business and, instead, look to existing and well-established legal frameworks to determine ownership.
Hopefully, this is what will happen when the District Court takes up Gutman’s case again. Here, the Second Circuit sent the case back to the lower court with a note that the ownership of the social accounts may turn, at least in part, on the terms of service of the relevant social media platforms and, specifically, does “ownership” of a social media account include the right to transfer the account to another. The Second Circuit also suggested that the District Court might want to separate the ownership of content posted on the accounts from the ownership of the accounts themselves, noting that rights to the accounts and rights to the accounts’ content may or may not be the same.
And on it goes. I’ll be paying particular attention to what the District Court says about the role of the terms of service for social media accounts. As we all know, social media companies change their terms of service — a lot. Does this approach give an outsized role to the terms of service even though the litigants in cases over ownership of social media accounts have no input into the terms of those agreements? Second, how will courts factor in changes to terms of service that parties may or may not be aware of, particularly as at least one of the parties to a dispute over ownership of a social media account probably never agreed to the terms of service? I suspect these issues will mean the District Court downplays the significance of the terms of service and instead looks at doctrines governing the ownership of other intangible property. Because tests that are well established… tend not to fail.
January 30, 2024
I started my law firm in February 2017. As I approach that anniversary again, I have some reflections on the lessons I’ve learned over the past seven years.
First, some background. Early in my career, I worked at two large NYC firms (i.e. BigLaw). My experience at those firms is a story for another day, but if you want an idea what that life is like, others have a more recent tale to tell.
After leaving BigLaw, I spent more than 10 years at a litigation boutique. My colleagues were incredibly good to me over that decade, teaching me a lot about how to be an effective lawyer. They supported me when I needed to get my feet underneath me after the death of both of my parents, and then when I got married and had a baby. But I reached a point where not only had I learned everything they had to teach me, I knew that I needed and wanted something else for my next chapter. I spent about a year figuring out what I wanted to do (while still working full time) and, ultimately, decided I couldn’t see myself working for someone else anymore. Also, having worked for people who had started their own law firms, I figured it couldn’t be that hard.
To a certain extent, I was right. It wasn’t that hard. However, in some ways, I was really, really wrong. I hadn’t fully anticipated the amount of reflection and introspection required to not just build something, but to build something that works for me and my clients. I believe the lessons I learned are worth sharing because they apply not only in the context of a small law firm, but to anyone trying to develop a client base.
First, I am not for every client, and not every client is for me. This has probably been the hardest thing for me to learn and an area where I’ve repeatedly failed to take my own advice, although I keep trying. I’ve slowly learned to interview potential clients so I can decide if they’re people I want to work with and, most importantly, to say no to those I think aren’t going to align with how I work and what my firm is about.
Why does this matter so much? Working with clients who aren’t a good fit can feel like a chore. It’s a drain on my time and energy and, I suspect that no matter how hard I try, these clients are going to be disappointed with my work. It’s not a formula for success, especially considering I get about 99 percent of my business from referrals. I know there will be attorneys better suited for the people I turn down, and I do my best to help those potential clients find them.
Of course, no one can always pick and choose clients. Like everyone else, I need to make a living. But screening clients carefully is critical regardless of your field, and this holds particularly true for what I do — commercial litigation. I frequently have adversaries who think that the best way to litigate is to be incredibly unpleasant (generally, it’s not, but that’s a subject for another post), and I don’t need to deal with this and a difficult relationship with a client at the same time, especially when a part of my job is sometimes to deliver bad news to the people I represent. Of course, this isn’t to say that my relationships with clients are all sunshine and flowers and unicorns who poop rainbows. The nature of the litigation beast is that sometimes things are going to get tense. All part of the job. However, focusing on working with simpatico clients is a north star that has been incredibly helpful, and has gotten me to a place where I work more and more with people I respect and trust — and who respect and trust me.
A second key lesson I’ve learned is to make time for the uncomfortable and the unpleasant. In my experience, to run a successful business you’re going to have to do some things that are difficult or you don’t enjoy. For a long time, what I hated more than anything was marketing myself. I felt I had no idea what I was doing and I was really afraid that someone out there on the Internet was going to criticize my marketing efforts. As I look back, I realize this self-doubt was something I picked up at one of the firms I worked at previously, but that too is a story for another day.
Because of this, for the longest time I would start every day intending to write a blog post, a newsletter, or something for LinkedIn, but because I found this marketing work so uncomfortable it was all too easy to push it aside in favor of other, less unpleasant or less scary things. Then, when I blew it off I would get frustrated with myself and feel bad about not doing the work. Suffice it to say, this was a pretty awful spiral that I do not recommend.
My solution began with recognizing the pattern, then blocking out an hour in the middle of each day to devote to growing my firm (I’m writing this during this time). Do I use this hour wisely and productively every day? Of course not. But do I use it wisely and productively more often than not? Yes. This doesn’t necessarily solve the problem of feeling uncomfortable doing things to market my firm — I still am — but it does make sure I don’t avoid it.
Stay tuned for more and let me know if there are any business development topics you’d like to see me talk about. I know we can all benefit from an exchange of ideas.
January 16, 2024
I closed out 2023 by writing about one lawsuit over AI and copyright and we’re starting 2024 the same way. In that last post, I focused on some of the issues I expect to come up this year in lawsuits against generative AI companies, as exemplified in a suit filed by the Authors Guild and some prominent novelists against OpenAI (the company behind ChatGPT). Now, the New York Times Company has joined the fray, filing suit late in December against Microsoft and several OpenAI affiliates. It’s a big milestone: The Times Company is the first major U.S. media organization to sue these tech behemoths for copyright infringement.
As always, at the heart of the matter is how AI works: Companies like OpenAI ingest existing text databases, which are often copyrighted, and write algorithms (called large language models, or LLMs) that detect patterns in the material so that they can then imitate it to create new content in response to user prompts.
The Times Company’s complaint, which was filed in the Southern District of New York on December 27, 2023, alleges that by using New York Times content to train its algorithms, the defendants directly infringed on the New York Times’ copyright. It further alleges that the defendants engaged in contributory copyright infringement and that Microsoft engaged in vicarious copyright infringement. (In short, contributory copyright infringement is when a defendant was aware of infringing activity and induced or contributed to that activity; vicarious copyright infringement is when a defendant could have prevented — but didn’t — a direct infringer from acting, and financially benefits from the infringing activity.) Finally, the complaint alleges that the defendants violated the Digital Millennium Copyright Act by removing copyright management information included in the New York Times’ materials, and accuses the defendants of engaging in unfair competition and trademark dilution.
The defendants, as always, are expected to claim they’re protected under “fair use” because their unlicensed use of copyrighted content to train their algorithms is transformative.
What all this means is that while 2023 was the year that generative AI exploded into the public’s consciousness, 2024 (and beyond) will be when we find out what federal courts think of the underlying processes fueling this latest data revolution.
I’ve read the New York Times’ complaint (so you don’t have to) and here are some takeaways:
- The Times Company tried (unsuccessfully) to negotiate with OpenAI and Microsoft (a major investor in OpenAI) but were unable to reach an agreement that would “ensure [The Times] received fair value for the use of its content.” This likely hurts the defendants’ claims of fair use.
- As in the other lawsuits against OpenAI and similar companies, there’s an input problem and an output problem. The input problem comes from the AI companies ingesting huge amounts of copyrighted data from the web. The output problem comes from the algorithms trained on the data spitting out material that is identical (or nearly identical) to what they ingested. In these situations, I think it’s going to be rough going for the AI companies’ fair use claim. However, they have a better fair use argument where the AI models create content “in the style of” something else.
- The Times Company’s case against Microsoft comes, in part, from the fact that Microsoft is alleged to have “created and operated bespoke computing systems to execute the mass copyright infringement . . .” described in the complaint.
- OpenAI allegedly favored “high-quality content, including content from the Times” in training its LLMs.
- When prompted, ChatGPT can regurgitate large portions of the Times’ journalism nearly verbatim. Here’s an example taken from the complaint showing the output of ChatGPT on the left in response to “minimal prompting,” and the original piece from the New York Times on the right. (The differences are in black.)
- According to the New York Times this content, easily accessible for free through OpenAI, would normally only be available behind their paywall. The complaint also contains similar examples from Bing Chat (a Microsoft product) that go far beyond what you would get in a normal search using Bing. (In response, OpenAI says that this kind of wholesale reproduction is rare and is prohibited by its terms of service. I presume that OpenAI has since fixed this issue, but that doesn’t absolve OpenAI of liability.)
- Because OpenAI keeps the design and training of its GPT algorithms secret, the confidentiality order here will be intense because of the secrecy around how OpenAI created its LLMs.
- While the New York Times Company can afford to fight this battle, many smaller news organizations lack the resources to do the same. In the complaint, the Times Company warns of the potential harm to society of AI-generated “news,” including its devastating effect on local journalism which, if the past is any indication, will be bad for all of us.
Stay tuned. OpenAI and Microsoft should file their response, which I expect will be a motion to dismiss, in late-February or so. When I get those, I’ll see you back here.
