Using AI to Create “Creative” Works

I have previously written on this blog about the intersection of entrepreneurship and the creative arts, in particular the copyright considerations that businesses must consider when creating or re-using media. The skyrocketing interest over the past year in artificial intelligence-driven content (aspects of which were covered in recent posts by Alex and Brandi) has led to some exciting but also concerning developments in how we think about creating and protecting media.

 It is now possible to ask a machine learning-powered tool to create an essay or a painting and to receive somewhat convincing results. On the one hand, these developments have been criticized as devaluing the contributions of legitimate human artists. On the other, proponents have argued that these AI tools provide creative services that some people or businesses could not otherwise afford or access.

Happy Public Domain Day 2023!

January 1, 2023 marked the fifth Public Domain Day in recent memory, and the excitement has continued this year. In past posts, I have discussed the history of this day in the U.S., some common public domain questions , and notable entrants into the public domain. On January 1 of this year, copyright-protected works from 1927 entered the public domain in the United States, joining previous favorites such as the first Winnie the Pooh book by A. A. Milne, hundreds of thousands of sound recordings, and Fitzgerald’s The Great Gatsby.

In 2023, the public domain expands to include works such as the last Sherlock Holmes stories by Conan Doyle, the second Winnie the Pooh book by A. A. Milne, and classics by Agatha Christie, William Faulkner, Ernest Hemingway, Franz Kafka, Thornton Wilder, and Virginia Woolf. In 2023, the first “talkie” film The Jazz Singer enters the public domain, as do film classics such as Metropolis. Fans of early musicals and popular music will be glad to learn that compositions such as Puttin’ on the Ritz, ‘S Wonderful, Ol’ Man River, and (I Scream You Scream, We All Scream for) Ice Cream are now in the public domain. As always, the caveat to this list is that only the original work from 1927 is in the public domain. Later adaptations or uses may still be copyright-protected – for example, a scholarly commentary on Woolf’s writings, a translation of Kafka to English, a sound recording of Ol’ Man River, or a film adaptation of Sherlock Holmes, all may have their own copyright protection that has not yet ended.

Copyright Licensing – Why You Should Read the Fine Print!

The world of copyright is full of potential pitfalls for new businesses. While a large, established business may have the resources to generate all of its creative works (photos, advertising copy, manuals, videos, packaging, software, website code, etc.) in-house, most businesses will at some point or another have to use material that has been created by a third party. How can an entrepreneur avoid running afoul of someone else’s rights?

The internet has made creative works more accessible than ever before. We have access to what sometimes seem like infinite resources. However, this accessibility has in some ways made the exercise of identifying what is and isn’t okay to use even more difficult and has popularized some common misconceptions about copyright.

Domain Names and Branding – What’s in a (Domain) Name?

In the internet age, a good domain name is a crucial part of any business’s branding strategy.

In a previous post on this blog directed at domain name owners, I covered the importance of domain names and identified some common domain scams. But what about new businesses that are just starting their branding? Ideal “.com” domain names can be in short supply these days. What is an entrepreneur to do?

Spectacular Failures: Case Studies of Business Implosions

For those of us who are avid multitaskers and prefer to consume our media aurally, podcasts are a great source not only of entertaining content but also new and valuable information. It can be intimidating to jump in on a long-running podcast with potentially hundreds of episodes, so I’d like to highlight a shorter series consisting of twenty standalone episodes: Spectacular Failures.

This podcast by American Public Media and the Carlson School of Management at the University of Minnesota examines one corporate catastrophe in each episode, taking an irreverent but educational approach to documenting each business’s rise and fall. Many episodes trace the collapses and scandals of corporate giants such as Pan Am and Forever 21, but others examine events involving smaller, more local businesses, such as the Los Angeles-based restaurant Squirl’s moldy jam scandal that went viral in 2020. The “spectacular failures” covered in the podcast range in date from the Triangle Shirtwaist Factory fire in 1911 to the current state of the NYC taxi industry, illuminating key points in the history of American business over the past century.

Welcoming 2022 and New Public Domain Works

 Happy New Year! There are many reasons to celebrate the start of a new year, but one reason particularly relevant for artists, writers, or other people looking to adapt and use artistic works is the occurrence of a new Public Domain Day. I wrote about the history of this day in the U.S. and some common public domain questions last year. In essence, January 1 is the day on which a new set of works previously protected by copyright pass into the public domain in the United States and become available for free use. Public Domain Day 2022 is only the fourth such day in the U.S. since the 90s and continues to be exciting, as works from 1926 enter the public domain.

Fortnite and In-App Purchases, Continued

Last year, I posted about Epic Games’ lawsuit against Apple, which claimed that Apple’s tight control over apps for iOs devices, particularly Apple’s in-app purchase system, violated antitrust and unfair competition laws. Now, a bit over a year later and after extensive coverage in technology and gaming circles, a judge in the Northern District of California has ruled on the merits of the case. The opinion is a mixed bag, as the court found in favor of Apple on most points but in favor of Epic on one claim; the court declined to find that Apple has an unlawful monopoly, but did find that Apple’s conduct in prohibiting app developers from providing information to consumers about payment alternatives was anticompetitive. While the ruling is narrow, it does open the door for mobile gaming developers to potentially avoid Apple’s commission on in-app purchases.

Taking the good news (at least for independent app developers) first, the court issued a nationwide injunction preventing Apple from prohibiting developers from including information in their apps and consumer communications regarding alternative purchasing mechanisms in addition to Apple’s proprietary in-app purchase system. This is potentially a very financially significant step, as Apple was previously requiring that developers of apps in its App Store only use Apple’s payment system for in-app purchases and was taking a commission of up to 30% on all such purchases. Now, developers will be able to inform customers about alternative channels to make these purchases, avoiding Apple’s commission, without being prevented from offering their app for download on the App Store. Consumers spend a massive amount of money on in-app purchases; one source estimates that consumers spent $32 billion on in-app purchases via the App Store and Google Play just in the first quarter of 2021. Many apps rely on in-app purchases for their profitability, and doubtless many developers will be very interested in avoiding Apple’s 30% commission, if possible.

As for Epic’s unsuccessful antitrust claim, a large part of the arguments turned on defining the “market” within which Apple was allegedly a monopolist. While somewhat technical, this fundamental struggle to define the relevant market goes to show how emerging technology does not necessarily fit easily within the boundaries of traditional legal or commercial analysis. Apple argued that the relevant market was the entire digital gaming market (featuring some interesting conceptual discussion of what, exactly, is a “video game”), whereas Epic argued that the relevant market was the market of all mobile apps running in the iOs ecosystem. The court disagreed with both, finding that the relevant market was that of “mobile gaming transactions.”

While this market may seem to be very narrow, the court noted that the “mobile gaming market itself is a $100 billion industry.” In fact, 70% of Apple’s App Store revenue was estimated to come from gaming apps as compared to other types of apps. The court ultimately found that Apple had about a 55% market share in digital mobile gaming transactions, with “extraordinarily high profit margins,” but that Epic had not produced enough evidence to show that Apple was a monopolist. The door appears to be cracked open for future monopoly claims against Apple, though, as the judge noted “the evidence does suggest that Apple is near the precipice of substantial market power, or monopoly power, with its considerable market share.”

For those interested in software, and particularly the mobile app market, the first part of the 185-page opinion is worth a read as it includes many interesting figures regarding consumer behavior and the app market. The Verge also has comprehensive discussion of this case for busy entrepreneurs who don’t have the time to (or interest in) reading legal opinions—especially if they aren’t suffering badly enough from insomnia to otherwise have a need to do so…

Epic has already appealed the court’s judgment to the Ninth Circuit, so this case is not over yet. It will be interesting to see whether the Ninth Circuit takes a broader view of the potential monopoly issues raised in this case and whether it agrees with the lower court that the relevant market is “digital mobile gaming transactions.” The universe of mobile apps has grown very quickly over the last decade and the legal system’s analysis will have to catch up. The fact that Epic succeeded in its challenge of Apple’s rule against developers informing consumers of alternate payment methods, however, suggests that app developers in other spheres might also start challenging the restrictions placed on them by Apple’s App Store and Google’s Play Store. And should Apple’s control over the market grow in the future, it’s possible that a new antitrust claim would succeed. 

Darknet Diaries: Valuable Lessons from a Cyber Security Podcast

In the past few years, podcasts have come to dominate my personal media consumption, and I am far from alone: as of 2021, 57% of Americans have listened to a podcast and about 28% listen to podcasts weekly. As a person who is perpetually trying to do too many things at the same time, podcasts are appealing because I can listen to them while commuting, exercising, or working around the house.

I am particularly fascinated by podcasts that feature experts in a complicated topic discussing that topic and their experiences. I find that these podcasts are often a great way to both learn about a topic and hear from a variety of people with different experiences. One of my favorite podcasts in this area is Darknet Diaries, a podcast created by Jack Rhysider, that covers a variety of cybercrime and Internet topics, and often features fascinating interviews with hackers and security professionals.

More than just covering the titular “darknet,” each episode of the podcast contains valuable lessons even for those of us who stick to the surface web. For example, in one recent episode titled “The LinkedIn Incident,” Rhysider covered the 2012 LinkedIn hack that eventually resulted in the posting of 117 million user details to the public. The hacker got access to LinkedIn’s user information by using publicly available information such as social media to identify a site engineer at LinkedIn, locate that engineer’s personal website, trace information from that site to the engineer’s IP address, and find a doorway into that engineer’s personal computer that the engineer used to do remote work for LinkedIn. From there, the hacker was able to use the user information in LinkedIn’s database to also access data from Dropbox and Formspring, likely because some LinkedIn users who worked at those other tech companies were re-using their passwords across multiple sites. 

The use of social media information is a common theme in these episodes. This sort of public information can be used in connection with a type of “social engineering,” a phrase used in information and cyber security to essentially mean using deception to “hack” people and convince them to give up private information. Its use ranges from gaining access to individuals and their computers, entering physical buildings, convincing people to give out sensitive information such as PINs over the phone, or forming relationships with potential whistleblowers.

Avoiding the Domain Scam

As reported by Lori Wiese-Parks only a few months ago on this blog, the number of misleading solicitations and notices relating to trademark applications appears to be on the rise. Unfortunately, these scams connected to the trademark registration process are not the only brand-related schemes targeting entrepreneurs: scammers also like to send misleading messages regarding domains. 

The selection and purchase of a domain name is a vital step in getting a business off the ground and often one of the first steps in the branding process. Entrepreneurs generally seek out short, easy-to-remember domain names that incorporate their brand in combination with a standard top level domain (TLD), such as “.com,” or a TLD common in the industry, such as “.io” for technology companies. Domains can even become a shorthand for a business and its products — as discussed in an earlier post regarding BOOKING.COM; sometimes a domain can become so distinctive that the domain itself is recognized as a trademark.

Domains allow businesses to advertise to their customers, sell goods and services, and communicate. As such, a business’s domain and the website at that domain is one of its most vital links to the public. However, just registering a domain is not enough — domains must be connected to services such as web hosting and periodically renewed. Even short-term disruptions to the website or domain of a business can have a significant impact. Particularly disastrous is if a business fails to renew its domain and is forced to move its online presence to a different domain. (This specific issue is best avoided by making sure that the domain is set to auto-renew with the domain registrar or by registering the domain for a period longer than one year.) 

The extreme importance of registering and maintaining a domain opens the door for scammers to take advantage of entrepreneurs. Scammers often send misleading messages regarding a domain in the knowledge that the business owner might not be intimately familiar with the domain registration process and might act without thinking if they receive a notice implying that their domain is at risk. Fortunately, these scams are often easy to detect and dismiss. 

Celebrating Public Domain Day 2021

The end of 2020 was widely anticipated for many reasons, but January 1, 2021 was not just notable for being the first day of the New Year. January 1 is also “Public Domain Day,” the day on which creative works enter the public domain and are no longer protected by the exclusive rights of copyright. 

If you haven’t heard of this day, it might not just be because it is only celebrated by intellectual property nerds. Public Domain Day was a foreign concept here in the United States for a couple of decades: we didn’t have a Public Domain Day from 1998 until 2019. This is because in 1998 Congress extended the term of copyright protection for 20 years, resulting in a public domain drought for two decades. 2019 was an exciting year for those interested in copyright, and two years later in 2021 the thrill has not entirely worn off. In fact, this yearly occurrence should be of interest to anyone who wants to be able to freely use and adapt creative works, including entrepreneurs and small businesses.

What is the public domain? As previously discussed on this blog, copyright grants the authors of creative works — such as books, songs, paintings, photographs, articles and movies — a set of exclusive rights. If anyone else wants to use, copy, reproduce, distribute or create derivative works from a creative work, they need permission from the copyright owner. However, copyright has a limited term. Once a work is no longer protected by copyright, it enters the public domain and no permission is needed to use the work.

Registration of “Generic.com” Trademarks after Booking.com

One of the most critical aspects of starting a new enterprise, or growing an existing business, is
establishing and protecting a strong brand. For most modern entrepreneurs, this means not only selecting a name and logo but also acquiring a domain name. Some online businesses have taken the approach of using a domain that incorporates a generic term for the sort of goods or services provided by that business and using that domain not only for their website but also as their primary brand for advertising and sales purposes (for example, shoes.com, hotels.com, mattress.com). While these domains can be valuable from a marketing perspective, it can be difficult to protect these domains from a trademark perspective. This is a particular challenge for businesses that have come to use a domain as their primary brand, because such “generic.com” terms are often denied federal registration as trademarks. 

In June 2020, the U.S. Supreme Court issued a decision in United States Patent and Trademark Office v. Booking.com B.V. stating that trademarks that combine a generic term with a top-level domain such as “.com” should not automatically be considered generic overall. The United States Patent and Trademark Office’s (USPTO) had rejected Booking.com’s applications to register the mark BOOKING.COM for online hotel-reservation services on the basis that these terms are generic and unregistrable by default. However, the Supreme Court found that, if consumers recognize an applicant’s “generic.com” mark as specifically identifying that applicant as the source of the goods or services, the mark may be registrable. 

Epic Games’ Fortnite Takes on In-App Purchases

The stay at home orders instituted during the COVID-19 pandemic have resulted in booms in a number of perhaps unexpected industries, including the video game industry. In May 2020, The Washington Post reported significant increases in subscribers to the Xbox Game Pass service, sales of Switch gaming consoles, users of gaming platforms, and viewers of gaming livestreams. Fortnite, the wildly popular online battle royale game developed by Epic Games, has provided some particularly astonishing metrics. An in-game concert by rapper Travis Scott broke records when 12.3 million players participated in the event concurrently. A couple of weeks later, Epic reported that players spent over 3.2 billion hours in the game in the month of April. 

Much of Fortnite’s popularity comes from its accessibility. The battle royale portion of the game is free to download and play, and can be played across gaming platforms including Xbox, PlayStation, PC, Mac, Switch, and both iOs and Android mobile devices. That is, until two weeks ago when Apple and Google blocked Fortnite from their respective stores, preventing mobile gamers from downloading or updating the application on their smartphones and tablets. Epic Games has now filed suit  against both companies, alleging that each holds unlawful monopoly power over the distribution of applications for their respective sets of mobile devices and is engaging in unfair competition.