September 2, 2025
By Emily Poler
I’ve written a lot on this blog about the legal battles between copyright owners and the AI platforms that have used and continue to use copyrighted works to train their LLMs. However, I haven’t been terribly explicit about my views on what’s right and what’s wrong. Instead, I’ve focused on the parties’ legal maneuvers and what I see as the strengths and weaknesses in the various arguments and judges’ decisions, while also suggesting that existing case law can be extended to cover new technologies. This has been an intentional choice because I’m a lawyer and a litigator, not a policy maker. Therefore, I might not be the best person to opine on what’s “right” and what’s “wrong.”
I do, however, wonder whether it is time to recalibrate our legal approach to some copyright issues. After all, U.S. copyright law traces its origins back to English common and statutory law from the 18th century, and it’s fair to say that things have changed A LOT since the days when George III wore the crown.
So, given that everyone can use some light reading after the holiday weekend, I thought that with summer in the rearview (sigh), I’d wade into this thicket with a few thoughts and questions.
In the main, I find the idea that companies like Anthropic, Google, Meta and OpenAI can mine a vast amount of content without compensating creators to be really problematic. The U.S. Constitution’s Copyright Clause (“The Congress shall have Power . . .To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”) is intended to incentivize creation of new works. The idea here is that society as a whole benefits from incentivising individual creators while fair use provides a mechanism to allow others to create new works using existing works and thus further benefit society.
Fair use, which is what AI companies rely on in their arguments to allow them to mine copyrighted content, is disturbing to me in this context because it’s hard to believe in 2025 that any tech company is acting in the public interest or that its innovations will improve society at large. And so, my question here is, is any court capable of determining the potential societal benefit (or lack thereof) from a given innovation? It seems super hard because (1) long term benefits and downsides are difficult or impossible to predict, and (2) any one technology can have results both bad (Internet > social media) and good (Internet > not having to look at a paper map while driving).
I also have questions about how to properly classify what AI companies derive from copyrighted works. The companies argue that their training models are taking only non-expressive information — how words and other information are arranged — from human-created materials, and not expressive content — the meaning of the words and information. In other words, they claim an LLM scanning a scholarly work on who authored Shakespeare’s plays is only using the words and sentences to learn how humans think and communicate, and not actually paying attention to (and potentially ripping off) the author’s arguments that Christopher Marlowe is the true creator of Romeo and Juliet.
But can we really make that distinction? The way I arrange words in this blog post is, in fact, central to the idea that I’m expressing. By way of comparison, the argument that how human authors arrange words is “non-expressive” might be akin to saying that Death of a Salesman read by a monotone, computer-generated voice is the same as performed by an actor with years of training. I, for one, have a hard time buying that.
Furthermore, the role of corporations has changed dramatically since Parliament passed the first copyright statute — the Statute of Anne — in 1710. This makes me wonder if it’s time to consider whether copyright law should distinguish between incentives for companies to create works, and incentives for individuals to create.
Obviously, these are all big questions that in one way or another are currently being touched upon in the courts. But what all my questions come down to is, are the courts really who should be answering them? I worry that without a broader, societal examination of how copyright law should be applied to AI, as opposed to narrow courtroom applications of centuries old laws and principles to previously unimaginable technologies, we will get results that only benefit large companies while hurting individual creators and, ultimately, society as a whole — which would be the exact opposite of what copyright law was created to achieve.
August 27, 2025
By Laura Trachtman
It’s almost football season! Taylor Swift and Travis Kelce got engaged! We have drama associated with claims against the NFL for discrimination! It’s an exciting time to be a football fan.
In a 100-page First Amended Complaint, “on February 1, 2022, Coach Brian Flores—who is now joined by Coach Steve Wilks and Coach Ray Horton—filed this class action lawsuit against the National Football League (“NFL” or the “League”) and its member teams. The suit alleged, and continues to allege, systemic racial discrimination in the hiring, retention and termination of NFL coaches and executives.”
If you didn’t know (and I did not, so I looked it up), Brian Flores was the Head Coach for the Miami Dolphins, Steve Wilks was the Head Coach for the Arizona Cardinals, and Ray Horton was the Defensive Backs Coach for the Washington Redskins. The case’s venue is in the Southern District of New York, which is where the NFL maintains its headquarters, and the causes of action are an interesting mix of federal and state: Section 1981 of the Civil Rights Act, New York State Human Rights Law, New York City Human Rights Law, New Jersey Law Against Discrimination, and Florida Private Whistleblower Statute.
(Side Note: I’m always interested in why a plaintiff would ground a discrimination lawsuit in the federal statutes, where the requirements to prove discrimination are so much more stringent than under the New York’s statutes, and there are filing requirements with the EEOC that must be satisfied, but that’s another blog post for another day.)
Moving past my skeptical feelings about how OF COURSE the NFL discriminates against people of color – I didn’t even realize that there were Black head coaches aside from Mike Tomlin, of the Pittsburgh Steelers – some lawyer in Southern California managed to get himself into biiiiiiiiiiiiiiiiiiiig trouble with a District Court Judge in this case. False start, ten yard penalty!
Michael Caspino appeared as attorney for Wilks in January 2025, and then withdrew as Wilks’ counsel in June 2025. Unfortunately, there appear to have been some inconsistencies associated with Mr. Caspino’s Notice of Appearance, which resulted in Judge Valerie E. Caproni issuing the following on June 17, 2025:
ORDER TO SHOW CAUSE: IT IS HEREBY ORDERED that Mr. Caspino is ordered to show cause by July 7, 2025, why the Court should not refer him to the disciplinary panel of this Court to consider whether he should be sanctioned for his conduct. As part of that submission, Mr. Caspino is required to provide a certificate of good standing from each state in which he is a member of the bar and explain, under oath: 1) how he was able to file a Notice of Appearance in the Southern District of New York on ECF despite not being a member of the bar for the Southern District of New York; 2) why his signature block in filings at docket entries 135 and 136 states “Pro Hac Vice Pending” despite the fact that Mr. Caspino never filed a motion to be admitted Pro Hac Vice in the Southern District of New York; 3) why he represented in the notice of appearance that he is “admitted or otherwise authorized to practice in this court” when it appears that it not accurate; 4) why as of June 17, 2025, his website (https://www.pricecaspino.com/michael-caspino) continues to represent falsely that he is a member of the Arizona bar; and 5) unless he has provided a certificate of good standing from the bars of California, Colorado, and Nevada, why, as of June 17, 2025, his website represents he is a member of the bars of those states. If Mr. Caspino fails to provide at least one certificate of good standing from the bar of at least one state, his submission must also address why a criminal referral for the unauthorized practice of law is not appropriate.
TL; DR: Judge Caproni is BIG MAD at Mr. Caspino for his misstatements of fact as to his credentials.
If you thought that the Judge would let it go after Mr. Caspino filed a letter on July 7, 2025, correcting misstatements of fact in his Notice of Appearance (that he had applied for admission in SDNY pro hac vice, which he had not) and on his website that he was admitted to the bars of certain states (AZ, CA, NV and CO, two of which he was no longer a member of), you were wrong. The Judge doubled down on July 9, 2025, with this Order:
ORDER: IT IS HEREBY ORDERED that Mr. Caspino is ordered to explain, under oath, how he was able to file a Notice of Appearance in SDNY on ECF despite not being a member of the SDNY bar and to provide a Certificate of Good Standing from the California Bar by no later than July 31, 2025. IT IS FURTHER ORDERED that, also not later than July 31, 2025, Mr. Caspino must provide a more complete explanation of how he came to represent falsely that he was “admitted or otherwise authorized to practice in this court;” when it was decided that he would not represent Mr. Wilks in this action; why he thought it appropriate to state that admission pro hac vice was pending when no motion had been made; when his membership in the bars of Nevada and Colorado lapsed; when he was reinstated to the Arizona Bar and proof from the Arizona Bar that he has, in fact, been reinstated; and why he should not be referred to the disciplinary panel of this Court in light of his admitted misrepresentations to the Court.
Mr. Caspino filed another letter on July 31, 2025, providing a Certificate of Good Standing from the CA Bar and a letter from the AZ Bar, but the Judge still didn’t let it go: on August 5, 2025, she entered the following Order.
ORDER: IT IS HEREBY ORDERED that Mr. Caspino is ordered to appear in person for a hearing on August 25, 2025 at 10:30 A.M. in Courtroom 20C of the Daniel Patrick Moynihan Courthouse, 500 Pearl Street, New York, New York, 10007 and be prepared to explain under oath: (i) how he obtained ECF filing privileges in this Court without being admitted to practice in this Court; (ii) how he came to represent falsely in the Notice of Appearance that he was admitted or otherwise authorized to practice in this court, Dkt. 135; (iii) when it was decided that he would not represent Mr. Wilks in this action; (iv) why he thought it appropriate to represent that admission pro hac vice was pending when no motion had been made, Dkt. 135, 136; (v) whether he has previously filed notices of appearance in any other court falsely representing that he was admitted or otherwise authorized to practice in this court, even though he was not and, if so, in what cases and in what jurisdictions; and (vi) why he failed to respond fully to either of the orders issued by this Court, Dkts. 138, 140.
Another letter from Mr. Caspino on August 21, 2025, and on August 22, 2025, the Court filed the following Order:
By no later than August 22, 2025 at 12:00 P.M. Pacific Standard Time, Mr. Caspino must provide the Court with the name of the case, case number, the presiding judge, and a copy of the Order scheduling the August 25, 2025 court appearance in Orange County Superior Court that he referenced in his declaration. Mr. Caspino’s declaration makes multiple references stating that he has “voluntarily complied with the Court’s Order” and “voluntarily provided answers,” which suggests that he does not consider that he is subject to the jurisdiction of the Southern District of New York. He is clearly mistaken. The grievance committee of the Southern District of New York may discipline “[a]ny attorney not a member of the bar of this court [who] has appeared at the bar of this court without permission to do so,” Local Civ. R. 1.5(b)(6), and the grievance committee may discipline “any attorney” who, “in connection with activities in this court,” engages in “conduct violative of the New York State Rules of Professional Conduct,” Local Civ. R. 1.5(b)(5).
At this point, this lawsuit has totally deteriorated into a war between this poor schlub from California and the District Court Judge, who is having absolutely none of his nonsense. There hasn’t been a filing related to the merits of this case for literally months; it’s just Caspino and Judge Caproni going at it hammer and tongs.
The latest filings memorialize that Judge Caproni Ordered Caspino to appear on August 25, and he claimed that he had a conflict, so she Ordered him to appear on August 26, and he claimed to have yet another conflict, and she refused to allow him to appear other than in person. He did not appear before her in person on August 26, 2025 at 2:30pm, and so she issued the following Order:
ORDER TO SHOW CAUSE: IT IS HEREBY ORDERED that Mr. Caspino is ordered to show cause why he should not be held in contempt and sanctioned accordingly for his failure to appear at the show cause hearing scheduled for August 26, 2025. By no later than noon EST, August 28, 2025, Mr. Caspino must provide three dates during the last two weeks of September 2025 on which he is available to appear in-person in the Southern District of New York for the show cause hearing. IT IS FURTHER ORDERED that if Mr. Caspino wishes to submit a memorandum of law or other materials in connection with any of the orders to show cause that are pending, including the current order to show cause why he should not be held in contempt and sanctioned accordingly, all such materials must be filed no later than September 12, 2025. SO ORDERED.
And that, my friends, is why you never, ever, ever, ever, mess with a federal judge. Touchdown!
August 19, 2025
By Emily Poler
Six months ago (or thereabouts), Laura and I wrote a joint post to introduce our new firm of Trachtman & Poler. More recently, Laura wrote her own update about how our team-up has changed her approach to work and its effect on her life. Now it’s my turn.
The hardest thing for me has been confronting the fact that I no longer have to do everything on my own. It’s still very much a work in progress, but I’m getting there (I think!). Perhaps my ingrained independence has to do with the way I grew up, or maybe it’s the fact I was working solo for seven-ish years, but my default mode in every situation has been, I got this — by myself. But now with a partner and (gasp) an actual employee, I’ve got support. A team! People I can turn to for help when I need it.
Along those lines, learning to leverage each other’s strengths has been great. A second set of eyes on any question is always helpful, but they are especially valuable when the mind behind them brings a different and, often unexpected, perspective. We’re all unique humans and solve problems in distinct ways, and when our talents are combined, that can lead to new and improved results.
Another key evolution has been learning how to speak up about the little (and sometimes not so little) things so that they don’t turn into big problems later. This is especially critical when there’s a lot going on and it’s easy to let things slide. Here’s a perfect example: Prior to settling on our fabulous offices in DUMBO (if you’re in the neighborhood, please come say hi), we looked at a bunch of other spaces and saw some that we really loved but weren’t quite right. We eventually decided on one that seemed like it would work. But before we committed, Laura spoke up and said what I was also sort of thinking, but hadn’t fully realized (or had the time to realize): the space was just okay, and not what we really wanted. We needed to keep looking. So we did, and we won. The short lesson here: If you have something to say, say it!
Of course, everything isn’t perfect yet. I’m still a one-woman IT department over here; this remains the bane of my existence. I feel like Google Customer Support folks must roll their eyes every time I contact them (yes, it’s a lot) and G-chat each other “Oh, it’s her again.” Is getting our systems up and running and talking to one another easier than it would have been 10 or 15 years ago? Absolutely. Is it seamless? Definitely not.
But that’s a relatively minor irritant. The first few months of our partnership have been incredible, and I am so excited for the future here.
August 12, 2025
By Laura Trachtman
In January 2025, the President Trump Administration issued an Executive Order claiming that gender is binary, and a person is either a man or a woman. Let’s take a brief step into this document and review the reasoning behind the same.
President Trump claimed that “[a]cross the country, ideologues who deny the biological reality of sex have increasingly used legal and other socially coercive means to permit men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women, from women’s domestic abuse shelters to women’s workplace showers. This is wrong. Efforts to eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and well-being. The erasure of sex in language and policy has a corrosive impact not just on women but on the validity of the entire American system. Basing Federal policy on truth is critical to scientific inquiry, public safety, morale, and trust in government itself.” There’s a lot to unpack here.
First, this Executive Order references single-sex domestic abuse shelters as places of refuge for women, but that’s it. Despite the acknowledgement, however brief, that women are the demographic group to suffer by far the most from domestic abuse, no plans have been iterated to support relief in this area. In other words, the President has said that this is an area that women in particular need assistance with, but no plans have been made to help women in this area. On the contrary, the recent federal budget cuts have reduced federal spending in this area by a third. So here we have an Executive Order that specifically referenced a need unique to female Americans, and not half a year later, the President reduced spending by over one hundred million dollars ($100,000,000).
It goes without saying that there have been no Executive Orders directed towards reducing domestic abuse by increasing education to male Americans, or increasing spending on mental health treatment. Furthermore, it is the apex of hypocrisy for President Trump to accuse trans women of attacking cisgendered women. I myself know a woman who admitted to me that she was groped by President Trump against her will before he assumed office, and the news outlets have publicized myriad accounts from myriad women who alleged that President Trump sexually assaulted them. In other words, President Trump believes that men will sexually assault women because President Trump himself has sexually assaulted women – which he freely admitted.
This indicates clearly that President Trump is uninterested in doing the work to actually protect women, but simply seeks to blame a disenfranchised population, that of transgendered women, for the crimes of cisgendered men.
Second, this Executive Order discussed women’s workplace showers. While I have never worked at a location that has workplace showers, I believe the assumption implicit therein is that these showers are communal (this is not necessarily the case, but let’s assume that it is). The point that President Trump implied is that men will be unable to control themselves in a room full of scantily-clad or naked women and that the women will be in danger of sexual assault from predatory men. Again, accounts from contestants in the Miss America pageant (which President Trump owned from 1996-2015) who were required to change backstage in between performances complained that President Trump regularly went backstage while they were changing, and also sexually assaulted them.
Again, no plans were revealed to help prevent sexual assault. As in domestic abuse shelters, women are by far the demographic more likely to suffer from sexual assault, but instead of training men not to assault women, sexually or otherwise, President Trump chose to blame transgendered women for the crimes of cisgendered men. It is noteworthy that the same budget cuts described above that affected funding for domestic violence shelters also affected funding for victims of sexual violence, so again, instead of putting funding into areas where women in particular need it the most, President Trump reduced it by a third.
Our third and final point for today is the commonly mentioned topic of transgendered women in women’s bathrooms. While this is not specifically mentioned in the Executive Order I’m parsing today, it certainly is common enough in certain states and was surely a contributing factor to the issuance of this Executive Order; Florida, Montana, Ohio and Wyoming are some, and you can see here a full list of the specific states and their prohibitions.
When I first came across this topic, I was really, really confused. Why would it matter who was peeing in the stall next to mine? But after thinking about this for a spell, I realized that men who have never been in a women’s restroom don’t know that, unlike in men’s restrooms, there’s no bullpen. Women simply cannot watch each other using the facilities, as we use individual stalls, so unless the person goes under or over the wall dividing each stall, it’s a non-spectator sport. While I repeat that this isn’t mentioned in the Executive Order, it’s something that most men are simply unaware of (this was a big discussion in the Trachtman household while Alan was alive, and he had literally no idea how women’s restrooms were laid out) so I think it’s important to discuss it here for the benefit of my readers, like my father, who never set foot in a women’s restroom.
In the Executive Order, President Trump claimed that he was mandating this recognition of gender as a binary in order to protect women’s “dignity, safety and well-being.” He entirely failed to explain how transgendered women in traditionally cisgendered women’s spaces violates women’s dignity, although the argument can certainly be made that by walking around backstage at the Miss America pageant, President Trump attacked the dignity of those contestants. Furthermore, President Trump has acted against the preservation of women’s wellbeing and safety by stripping over a hundred million dollars of funding from programs that are critical to women, as I discussed above. Finally, for a man who has been repeatedly accused of sexual assault, and who actually admitted to sexually assaulting women, to claim that he does anything for women’s dignity, safety, and wellbeing, is a fucking joke. This Executive Order is nothing but base hypocrisy, fear mongering and pandering to bigots, and nothing about it actually seeks to protect women, as indicated by the complete omission of any language condemning men for committing acts of violence against women.
August 6, 2025
By Emily Poler
Remember NFTs? Back in the last presidential administration, which seems a lifetime ago, a company called Yuga Labs launched Bored Ape Yacht Club (“BAYC”), a collection of 10,000 NFTs of apes decked out in yachting gear and appearing rather blasé about existence. At one point, Yuga and its bored apes were the most successful launch in NFT history, with total sales of more than $1 billion.
As I wrote about previously, a conceptual artist named Ryder Ripps and a partner decided to critique the BAYC imagery and/or capitalize on its success by selling a collection of Ryder Ripps Bored Ape Yacht NFTs (“RR/BAYC”) NFTs. Defendants lost in District Court, but the ape fight didn’t end there. Ripps and his co-creator appealed and the case dragged its knuckles onward to the Ninth Circuit Court of Appeals, which recently issued a ruling with some interesting twists.
Going back to the beginning of the matter, Ripps’ criticism was based on his belief that the BAYC logo and elements of Yuga’s ape images promoted racist stereotypes and incorporated Nazi and neo-Nazi imagery and ideas. For example: similarities between the BAYC and the Waffen SS logos; the ape skull on the Yuga Labs logo has 18 teeth, and 18 is code for Adolf Hitler; and the expression “surf the Kali Yuga” is used by white supremacists.
The RR/BAYC NFTs linked to the original BAYC images, but also came with a link to Ripp’s artist’s statement and a website where he criticized the BAYC images.
As will surprise no one reading this blog, in June 2022, Yuga sued Ripps and his co-creator, alleging that the RR/BAYC NFTs violated the Lanham Act which, generally speaking, prevents unfair competition and prohibits parties from trading on the name and goodwill of another. (Yuga sued on other grounds too, but there’s not enough space here to get into all that.) In their defense, Ripps et. al. asserted that Yuga did not have any enforceable trademark rights, and that their use of the BAYC trademarks were protected under the nominative fair use doctrine and the First Amendment. The District Court was not impressed with these defenses and eventually found that “‘Defendants’ use of Yuga’s BAYC [m]arks was likely to cause confusion’ and that Defendants intentionally infringed Yuga’s BAYC [m]arks.”
Defendants appealed and the Ninth Circuit Court of Appeals recently issued its ruling. But before turning to that, I’ve got to highlight this line in its decision: “[g]rappling with this nascent technology, we hold that Yuga’s FTs are not merely monkey business…” I mean, it’s a good pun (for a court); also, it’s funny/sad that it views something that already feels like it’s from the distant past as a “new” technology.
Okay, back to the ruling: On the plus side for Yuga, the Ninth Circuit affirmed the District Court’s rejection of some of Defendants’ defenses and arguments. For example, the Ninth Circuit rejected Defendants’ claim that NFTs are not “goods” and, therefore, not subject to the protections of the Lanham Act. The Court’s conclusion here is not terribly surprising, as the Lanham Act covers “any goods and services,” and, therefore, is extremely broad. It also rejected Defendants’ claims that their use of the BAYC marks was protected under either the nominative fair use doctrine or as expressive expression under the First Amendment. On the first issue — which allows someone to use another’s trademark to refer to the other party’s goods (as in comparative advertising) — the Court found the Defendants didn’t use the BAYC marks merely to describe or reference Yuga’s products, but to capitalize on Yuga’s success, which is not permitted.
On the other hand, the Appeals Court found the lower Court wrongly concluded that Defendants’ use of the BAYC marks were likely to cause consumer confusion, and found it erred in granting Yuga’s motion for summary judgment. There are a couple of things I find interesting about this. For starters, the Appeals Court found that the addition of “RR” to “BAYC” to create the moniker “RR/BAYC” could be enough for a jury to conclude that RR/BAYC was not the same as BAYC. It also held that the District Court oversimplified things when it concluded that both parties used identical marketing channels — NFT marketplaces and Twitter — to sell their NFTs. Here, the Appeals Court admonished the District Court for overlooking that most of the RR/BAYC NFTs were sold on rrbayc.com, which is different from Yuga’s bayc.com.
What to make of all of this? Well, it’s amazing that in 2025 people are still fighting over NFTs. While it probably makes sense for Defendants to try to get out from having to pay Yuga any money, it seems like Yuga should have just settled this years ago as this appeal had to have been costly, and I wonder how much cash it will actually ever recover from Defendants.
There’s something else in this decision that I found interesting. In general, trademark infringement and unfair competition claims hinge, at least partly, on whether consumers — i.e. people buying stuff — are confused as to the source of the products. Here, in a couple of places, the Ninth Circuit noted that bots were confused by the similarity of BAYC and RR/BAYC. While the Court didn’t really address this issue other than to note it, given the omnipresence of our algorithmic overlords, I wonder whether at some point how bots respond to particular online cues will come into play when analyzing consumer confusion. I bet we’ll find out!
