April 1, 2025
By Emily Poler
Not infrequently, I talk angry clients fired up to file defamation lawsuits out of going to court. I have a lot of reasons, but chief among them is that filing a defamation lawsuit, especially when the client is a public figure, will bring more attention to the potentially defamatory statements. Way more.
Why? For a statement to be defamatory, it has to be, among other things, false. It’s really hard (if not impossible) to prove something is false without repeatedly restating the defamatory statement. A lawsuit also allows the defendant to rebut claims that a statement is false by coming forward with proof that the statement is true, which also means constantly repeating the defamatory statement. In litigation, all this is likely to be a matter of public record, so if the plaintiff is a public figure, the defamatory statement will be repeated in the media a LOT. Which is usually the opposite of what the celebrity plaintiff wants.
All of which brings me to Drake’s defamation lawsuit against his record label, Universal Music Group (UMG), which seems like a prime example of a case where the plaintiff, a very famous Canadian rapper (you probably know that, but still), might end up doing himself more harm than good.
This case grew out of the highly public beef last year between Kendrick Lamar (an equally famous, Pulitzer Prize-winning American rapper) and Drake; for those of you who do not live with a teenager who was very eager to fill me in on the increasingly nasty verbal attacks the two artists slung at each other, here’s a brief run down.
(And yes, I do feel somewhat ridiculous to write the following in a semi-academic tone, but this is a legal blog, so here we are.)
Kendrick Lamar (“Kendrick”) and Aubrey Drake Graham (“Drake”) are both successful musicians. During 2024 each released several diss tracks, or rap songs with insults directed at the other. In a track called Taylor Made Freestyle, Drake (using an AI-generated voice meant to sound like the late rapper Tupac Shakur, but that’s a story for another day) challenged Kendrick to “talk about [Drake] likin’ young girls.”
After additional tracks back and forth in which Drake accused Kendrick of cheating on and physically abusing his fiancée, Kendrick responded with “Not Like Us,” which became one of the biggest songs of the year. To the millions of fans who followed the beef, Kendrick had thoroughly eviscerated and humiliated Drake.
In “Not Like Us” Kendrick raps, among other things “Drake, I hear you like ‘em young,” “tryna strike a chord and it’s probably A minor,” “Certified lover boy? Certified pedophile,” and “your homeboy needs subpoena, that predator move in flocks. That name gotta be registered and placed on neighborhood watch.”
Drake was none too pleased about this and, in early January, he filed a lawsuit claiming that “Not Like Us” and an accompanying music video and other materials are defamatory because he is not a pedophile, has not had sex with a minor and, in fact, has never been charged with “any criminal acts whatsoever.”
[NB: While Drake has never been charged with any crime, there are a lot of rumors about him having friendships with younger, female celebrities — some of whom were under 18 when the relationships started].
Notably, Drake brought his case against UMG, his own record label, which also owns the label that releases Kendrick’s music. Also notably, Drake did not sue Kendrick himself, presumably out of concern that he could subsequently face a counterclaim from Kendrick over Drake’s accusations that Kendrick cheated on and abused his fiancée.
Which brings us to UMG’s motion to dismiss, which it filed on March 17, 2025, and is based on two key arguments.
First, UMG argues that Kendrick’s statements in “Not Like Us” constitute “nonactionable opinion” because an average person hearing the accusations in a rap wouldn’t view them as literally true or false but would consider them hyperbolic statements made in the course of a heated exchange. In determining whether a statement can serve as the basis for a claim of defamation, courts have to look at the context in which they were made, and courts regularly find that statements such as Kendrick’s are not actionable.
Answering this particular argument will require the court to dive deeply into what was said in “Not Like Us,” along with the full context of the Kendrick-Drake beef — more deeply than is usual at the motion to dismiss stage. (Generally, on a motion to dismiss, courts only consider what’s actually in the complaint and the complaint here focuses on the specific statements without focusing on the larger context.) A deeper dive is not uncommon in defamation cases where there are serious First Amendment concerns that might chill free speech.
UMG next argues that Drake has not alleged that UMG acted with “actual malice.” In the context of a defamation case against a public figure, this means that, in his complaint, Drake has to point to evidence that UMG knew or believed at the time it released “Not Like Us” that the statements about Drake being a pedophile were false. This standard isn’t met where the party publishing the statement (UMG) believes that the statements are outrageous and/or not intended to convey facts. I think it’s likely that UMG’s release of “Not Like Us” is going to fall into this basket. Failing to dismiss the claim could lead to a world in which record labels would have to vet every diss track (plus a lot of other songs) to make sure they’re not defamatory — not a great (or realistic) outcome.
In any event, I’m curious to see how Drake responds to the motion to dismiss. My guess is that his lawyers will argue that the court shouldn’t look at all of the context around the supposedly defamatory lines in “Not Like Us” because it’s inappropriate at this stage of the litigation, and thus should reject UMG’s argument.
Stepping back from the legal points for a moment, what is Drake hoping to get from this lawsuit? His image took a pretty big hit as a result of the beef, but with the public’s mosquito-like attention span, by the time he filed the world had moved onto other things and in February Drake himself had a Billboard number one collaborative album with fellow Canadian superstar PartyNextDoor. Why keep his embarrassment at the hands of Kendrick in the public eye?
Whatever Drake is thinking, if I had to guess, this case is going to be dismissed or partially dismissed.
March 25, 2025
By Laura Trachtman
One of the questions I get most often from panicked clients is this: “I got served with a subpoena. What do I do??” Usually, it’s a tempest in a teapot, but sometimes it’s not. Let’s break it down a little bit.
There are many, many different types of subpoenas: subpoenas in criminal matters, in civil matters, in administrative matters. There are also different types of subpoenas: subpoenas asking the recipient to produce documents, and subpoenas asking the recipient to testify. For brevity’s sake, I’m going to address the singular most common subpoena to cross my desk: the subpoena duces tecum in a civil matter in the New York State courts.
I was about to reach for my father’s copy of Black’s Law Dictionary to get the actual Latin definition of the term, but no one wants that. [If you want that, subpoena is Latin for under penalty, and subpoena duces tecum is Latin for under penalty you shall bring with you.] A subpoena duces tecum is a subpoena asking the recipient to produce documents or evidence that is in their custody (i.e., they have them at their home or office) or control (they don’t possess the documents but can get hold of the documents). The form of the subpoena can shift a wee bit, but that’s what the subpoenaing party wants from the person being subpoenaed.
Who is the subpoenaing party? I’m glad you asked. Chances are good that it’s an attorney representing a client who is currently a party to a matter in the state courts. If it is, that’s the best option for the person being subpoenaed. Attorneys are allowed to issue subpoenas on behalf of their clients during a case. Here’s the catch: Attorneys do not have enforcement power, so that subpoena is a paper tiger.
Most serious is when the subpoena is issued by a judge. The courts naturally imbue their justices with enforcement power, but enforcing a So-Ordered subpoena, which is a subpoena that a judge has reviewed and signed and thus carries the weight of the court behind it, can be a real pain.
Finally, some jurisdictions allow a clerk of the court to issue a subpoena, and New York Supreme Court is one of those, but like the subpoenas issued by an attorney, this is without teeth. If you really want to be able to enforce your subpoena, you must convince a judge to sign it.
I’ve discussed enforcement of the subpoena, but what does “enforcement power” really mean? Broadly speaking, it means that if the judge tells you to do something (or don’t do something), you’d better obey, or else the judge can punish you by, among other things, holding you in contempt of court. (I was once banned from a courtroom for life, but that’s a story for another time.) The penalties associated with being held in contempt of court include a fine and a term of imprisonment. Best not to make that judge angry by disobeying the judge’s order.
In sum: what you do when you’re served with a subpoena really depends on who has issued the subpoena, and whether disobeying the subpoena means you’re going to get hauled into Court to face an irate judge, or whether absolutely nothing will happen to you.
March 19, 2025
As you may be aware from LinkedIn or something more one-on-one (a text, a phone call, gossip over a latte), effective March 1, 2025, the separate firms of Trachtman & Trachtman and Poler Legal have merged to form Trachtman and Poler. Together, we (Laura Trachtman and Emily Poler) will continue to represent clients in a range of commercial disputes, with an emphasis on partnership and intellectual property disputes and employment-related matters. There are a number of reasons we decided to boldly enter this new era, but mostly because working together will be better for us and, more important, better for our clients.
We’ve been setting up this merger for awhile and, as you may imagine, a lot of thought and energy has gone into it. Each of us has already learned a few things in the process, and we anticipate finding out even more as we move forward. So this seems like a propitious time to share a little bit about the good and the bad (luckily, not much ugly here) of how it went down.
Emily: For me, the hardest thing has been juggling creating a new firm while also handling all of my day-to-day legal work. When I started Poler Legal in 2017 there was so much I didn’t know about operating a firm, but since I didn’t have many clients there was plenty of time to get organized and learn as I went along. Now, I have a whole slate of clients, each with their own requirements and deadlines. So trying to put together a new firm while also handling active cases felt like trying to build an airplane while flying it at the same time. I realize this is a champagne problem; I’m also quite thankful the plane didn’t crash!
I’ve also been unpleasantly surprised by how hard it is to make the various tech platforms we individually use to work together. Setting up or reconfiguring accounts is so much harder than it should be. Syncing Clio, which tracked time for each of us separately prior to the merger, was far from a seamless process. And don’t get me started on Google, which is really a PITA as far as setting up a new email account so that it becomes the primary one. Champagne problems one again, but still.
On the other hand, having someone to partner with is GREAT. The best thing is that I now have someone who can serve as a gut check. As a litigator, my job is to take a position on behalf of my clients; it’s opposing counsel’s job to tell me my stance is wrong, unsupported, or just plain stupid. It can sometimes be hard to tell if they have a legitimate point or not. Now, Laura can provide an objective perspective and point out when I’m right and when (once in a rare while, I hope) I need to rethink my position.
Most of all, I am thrilled that after years of shouldering the burden alone for everything related to running a law firm (which, never forget, is also a business), I now have someone with whom to share the responsibility. It’s a fantastic feeling and an enormous relief.
Laura: The hardest aspect of this merger has been the 180-degree shift from how I worked before with my law partner and mentor — my Dad — who had taught me to take any case that came down the pike and learn to do it well. Such a reactive approach could be frustrating, as I sometimes found myself practicing in areas I didn’t particularly enjoy. When I started discussing partnering with Emily, and we outlined our plans for where we want this firm to go, it quickly became clear I needed to reshape my thinking and take a much more proactive approach to the type of work I want to focus on. While this means putting in more effort at the beginning, I think it’s going to result in a practice that makes me a lot happier with the work that I do — which will make me happier, full stop.
I’m also trying to be more proactive in developing content for this blog and LinkedIn. Again, this isn’t something I did previously — my suggestion to my Dad to write a legal blog was not met with approval — but I certainly enjoy it, so I look forward to it.
In the end though, the best thing about this merger is having someone to encourage (but not pressure) me to put in the work that will help our firm succeed. Moving from a reactive to proactive business model makes obvious sense, and I am grateful that Emily has so much knowledge and experience of it, and is generous with her time and energy to help bring me up to speed.
The other best thing is that being a solo practitioner can be isolating and stressful, so it’s such a liberating feeling knowing that the success of the firm is not all on me. It’s also pretty great having someone I trust who I can actually talk to about all the big and little issues that arise everyday in this legal game.
It’s a new era for both of us and we are both very excited for everything that is to come.
March 5, 2025
I’ve written a number of posts about data scraping because it’s a big deal right now. Initially, I was interested in the issue because it was pretty clear that AI companies such as OpenAI engaged in widespread extraction of data from other companies’ websites (i.e., scraping) to collect materials to create their generative AI platforms. More recently, my interest has shifted to focus more on the extent to which social media companies are trying to use their terms of service to limit or prevent others from collecting and selling their users’ data.
The interesting wrinkle: the social media platforms don’t actually own their users’ content.
First, some background: In case you’ve never thought about it (and there’s no reason for this to cross most people’s minds), when you sign up for an account on a social app like LinkedIn or X and agree to its terms of service, you give the platform a license to use your content. Generally speaking, this means that you give it the right to display, reproduce, distribute, and adapt your posts.
Why does this matter? Because the copyright to any posts vests in their creator (you) and without a license, a social media company would have to pay the creator (you again) each time a post is reproduced or displayed on the platform. The licenses users grant social media companies are non-exclusive and do not give them “ownership” over posts; they only allow the social media companies to publish the posts.
This is important for a couple of reasons. First, it gives social media platforms safe harbor from civil liability under Section 230 of the Communications Decency Act. This protects them from being sued for defamation and the like based on a user’s posts. Second, it means that the original creator retains ownership of the posts. Despite this, and as will surprise no one who has been alive over the last 20 years, social media platforms have tried to assert as much control over users’ posts as possible — often, far beyond what is actually permitted by law. And the Courts have started weighing in on this.
In a 2022 case brought against LinkedIn by a competitor that scraped LinkedIn’s data, the Ninth Circuit observed that “giving companies like Linkedin free rein to decide, on any basis, who can collect and use data — data that the companies do not own, that they otherwise make publicly available to users, and that the company themselves collect and use — risk the possible creation of information monopolies…”
More recently, a company called Bright Data Ltd. had been sued by both Meta Platforms, Inc., and X Corp. In those cases, the social media platforms alleged Bright Data violated their respective terms of service by scraping Facebook and Instagram and X and selling the information gathered to third-parties.
In neither case was the Court particularly impressed with the plaintiffs’ arguments that Bright Data should not be able to scrape their social media platforms.
In the Meta case, the Court found that Facebook’s and Instagram’s terms of use did not apply because Bright Data was not logged into an account on either when it engaged in scraping and/or had deleted its accounts before engaging in any scraping. The Court thus rejected Meta’s arguments and granted Bright Data’s motion for summary judgment.
And in the case brought by X, the Court found that X’s claims that data scraping breached its terms of use impermissibly conflicted with the Copyright Act. The Court held that “X Corp. would upend the careful balance Congress struck between what copyright owners own and do not own, and what they leave for others to draw on. In addition to giving itself de facto copyright ownership in copyrighted content that X users designated for public use, X Corp. would give itself de facto copyright ownership over content that Congress declined to extend copyright protection in the first place (e.g., likes, user names, short comments)…” As a result, the Court dismissed X’s lawsuit.
We’ll see where social media companies go in their efforts to try to keep as much of their users’ data for themselves (and their AI platforms), but the Courts have made it clear there are limits — as of now, third-party scraping of social media can continue.
February 19, 2025
As the lawyers reading this know, media giant Thomson Reuters has a proprietary online research database called Westlaw. In addition to hosting cases and statutes, Westlaw also includes original material written by Westlaw editors. A recent decision involving that original content and its use by Ross Intelligence, a potential Thomson Reuters competitor, to create an AI-powered product may provide a bit of a roadmap on fair use and other issues facing the courts considering cases against OpenAI, Perplexity and other generative AI platforms.
First, some background: while the bulk of Westlaw’s content — statutes, rules, ordinances, cases, administrative codes, etc.— are not subject to copyright protection, Westlaw editors concisely restate the important points of a case with short summaries. Each is called a Headnote. Westlaw organizes Headnotes into something called the West Key Number System, which makes it much easier to find what you’re looking for.
This case began when Ross asked to license Westlaw’s Headnotes to create its own, AI-powered legal research search engine. Not surprisingly, Thomson Reuters didn’t want to help create a competitor and said no.
As a workaround, Ross hired a company called LegalEase, which in turn hired a bunch of lawyers to create training data for Ross’ AI. This training data took the form of a list of questions, each with correct and incorrect answers. While the lawyers answering these questions were told not to simply cut and paste Headnotes, the answers were formulated using Westlaw’s Headnotes and the West Key Number System. LegalEase called these “Bulk Memos.”
Thomson Reuters was none too happy about this and sued Ross for, among other things, copyright infringement, claiming that “Ross built its competing product from Bulk Memos, which in turn were built from Westlaw [H]eadnotes.” In its defense, Ross claimed that Westlaw’s Headnotes were not subject to copyright protection, and that to the extent it infringed on Thomson Reuters’ copyrights, its use constituted fair use.
In 2023 the Court largely denied Thomson Reuters’ motion for summary judgment, ruling that, among other things, the question of whether Headnotes qualify for copyright protection would have to be decided by a jury. The Court, however, subsequently had a change of heart and asked Thomson Reuters and Ross to renew their motions for summary judgment. Earlier this month, the Court ruled on these renewed motions.
Of note, the Court found that at least some Headnotes qualified for copyright protection, as did the West Key Number System. On the Headnotes, the Court found that the effort of “distilling, synthesizing, or explaining” a judicial opinion was sufficiently original to qualify for copyright protection. The Court also found the West Key Number System to be sufficiently original to clear the “minimal threshold for originality” required for copyright protection. The Court further found that the Bulk Memos infringed on some of the Headnotes.
The Court also rejected Ross’ assertion of fair use. Its decision was based largely on the fact that Ross was using Thomson Reuters’ Headnotes to create a competing product. Here, the Court looked at not only Thomson Reuters’ current market, but also potential markets it might develop, finding that since Thomson Reuters might create its own AI products the Ross product could negatively impact the market for Thomson Reuters, which weighed against fair use.
The Court was not impressed with Ross’ reliance on a line of cases finding copying of computer code at an intermediate step to be fair use. Here, the Court noted that Ross was not copying computer code. Moreover, in those cases, the copying was necessary to access purely functional elements of a computer program and achieve new, transformative purposes. In contrast, Ross used Headnotes to make it easier to develop a competitive product.
Ultimately, these conclusions are most interesting because of what other courts hearing AI infringement cases may take from them. Sure, there are differences (notably, Ross doesn’t seem to be using generative AI), but this case highlights some of the legal and factual issues we’re going to see as other cases move forward. In particular, I think the fact that the Court here found that the process of summarizing or distilling longer cases into Headnotes renders the Headnotes subject to copyright protection may be problematic for companies such as OpenAI, which has tried to claim that it is only ingesting underlying facts from news articles. If creating Headnotes is sufficiently original to qualify for copyright protection, then it seems likely that a reporter selecting the facts to include in a news article is also sufficiently original.
Stay tuned. There is much, much more to come.
