librarypunk - 137 - Copyright Mythology

Episode Date: September 27, 2024

We’re getting into our favorite copyright myths and some copyright related news. Media mentioned Tattoo copyright news: https://apnews.com/article/kat-von-d-tattoo-trial-miles-davis-388d1831c0a065b096fe4f69fe8a224e Wiley news, sells rights to AI https://www.thebookseller.com/news/wiley-set-to-earn-44m-from-ai-rights-deals-confirms-no-opt-out-for-authors  https://fanlore.org/wiki/Disclaimer  https://en.wikipedia.org/wiki/Legal_issues_with_fan_fiction  https://fanlore.org/wiki/Disclaimer  https://www.eff.org/pages/eff-screen-lock-images-new-logo  Join the Discord: https://discord.gg/zzEpV9QEAG Transcript: https://pastecode.io/s/q0qhmqpg 

I'm Justin. I'm a Skalkham librarian. My pronouns are he and they? I'm Sadie. I work IT at a public library and my pronouns are they them. And I'm Jay. I'm a cataloging librarian and my pronouns are he him. No guest. So I don't have to use the cheer. This is what I expect from this podcast. Oh, I have like a Pavlovian response to the cheer. Like I like start like air clapping. I just expect it. Yeah. This is my old sonboard. Where's the new one? Because I reorged it.

Oh, right. Did I get to you? use this one yet? Mmm, so good and tasty? No. No. Please don't. Why are you like this? Why?

It's from a cooking show on like a public access show or something. I don't know, but this guy just can't quite get his right. I'm too tired for this shit. Sounds just titled. Mm-hmm. All right. I didn't move the news. I guess that means I need my old soundboard. All right. I'm trying to do more segments and adding more structure so that I can rip off trash feature better and other successful podcasts. So I'm doing a lot of segments today. Tattoo news. We're doing copyright today. Copyright myths, mythology. And there was an interesting article because I always am interested in tattoo copyright. So tattoo artist, Kat Von D, didn't violate photographer's copyright of a Miles Davis. portrait jury says.

So a jury found that celebrity tattoo artist, Kat Von D, did not violate a photographer's copyright when she used his portrait. Miles Davis is the basis for a tattoo. She put on the arm of a friend. The jury deliberated for about two hours before deciding a tattoo was not similar enough to the portrait, which I believe... It's kind of a burn on her scale. Yeah, it's also like, I don't believe that was the argument her lawyer made, which was

that it was fair use. They're just like, sorry, dog, you're not good enough tattoo artist with this to count. So she did the tattoo as a gift seven years ago. What are you doing? Sorry, I was getting my ears on iced tea. I forgot to grab it before I was sort of recording. You're going to crack it into the mic? Hell yeah, grip it and rip it.

So the jury found that it was fair use, giving Von D and other tattoo artists were sounding across the board. victory. The argument by the photographer was that the pose and everything was similar, that there was no way it could be, because he did all the work, you know, of setting up the portrait, you know, the way that photographs are copyrightable because of that Oscar Wilde portrait case. So I think part of it was because she didn't sell it. It was made as a gift, which made an interesting thing because the... That shouldn't matter. Well, it would matter for fair use because she wasn't selling it. Yeah, but you can still sell things and it'll be fair use. There's, like, famous art that's fair use that made bejillions of dollars.

Yeah, but it weighs in the favor of a fair use. All of the, everything's, you know, interconnected. Von Dee is among the stars of reality series Miami, Inc., and it's spin-off L.A. Inc., which I guess is how their work was brought to the attention to the photographer. Interesting was the photographer argued in his closing that the social media posts about the tattoo were a promotion of her in her studio and thus a form of monetizing. the image. So I feel like that's similar to the argument that the that Hatchet made against internet archives saying asking for donations on a page is a commercial use. I guess Instagram does

pay you money if you get enough fuse or whatever, maybe. I don't know. I mean, she's just already famous though. Yeah. Well, that's probably why she won. And it wasn't a very long deliberation. That's a thing. Like, with all these like copyright cases, like, I swear to gob and famous people are involved. Like, it's all about, like, public opinion. Like, like, whether or not the public likes this person. Like, I fully do not think that Robin Thick should have lost that case for blurred lines, even that song sucks. But I fully think he lost that case because the public was like, no, fuck this guy. He disrespected the Wu-Tang clan. That was the, um, no, that's the, that's from the Martin Schrelli-Farmabro case. There was a juror who famously said he

disrespected the Wu-Tang Clan. And that was why the juror was dismissed. That's pretty good. Wu-Ten Clan ain't nothing to fight with or whatever the lyric is. Mm-hmm. All right. More news. Wiley is set to earn 44 million from AI rights deals,

confirms no opt-out for authors. So Wiley is one of the major academic publishers. It made a 33 million pound license for AI partnerships with, I guess, multiple ones. They have this also happened with Taylor and Francis had an AI deal with Microsoft for 10 million. And then it did another one. So it made 75 million. Taylor and Francis did. You might have seen people posting about this a couple weeks ago because people were, I guess, notified or at least saw this and then reached out to Wiley, particularly with people who, I believe one person was a journal editor and was tweeting about it.

Or skeeting about it. I don't remember where I see anything. And, oh, wait, what's it called now that it's not Twitter anymore? Xing. Posting. Posting. Posting. That's not blogging. It's just posting. So anyway, they didn't want to bother with doing an opt-out because probably a lot of people would opt out and also be paying the ass because they would have to actually remove those works from the data that they hand over. Wiley spokesperson said we consider information about specific licensing agreements to be confidential in accordance with the terms of the agreement. It added Wiley is committed to protecting authors and copyright holders' rights. We monitor AI model developers for use of copyright and materials.

without permission and seek protections against copyright violations. So good. You've got your copyright still. Well, Wiley has it. So as with any commercial arrangement for the use of Wiley published content, Wiley compensates its partners, e.g. book authors, publishing partners, in accordance with contractual terms. Notably, this would not be any actual academic paper writers because they're not paid for doing this. But maybe if you get paid from an agreement with Wiley, if you run a journal, you might get money from this, maybe. Society of Authors recently wrote to AI firms demanding appropriate renumeration, consent for the use of their work. And there's something here about lawyers acting on behalf of different authors filing a copyright case.

But I think this is just, you know when like journalists just throw in like an unnecessary connection? They're like, oh, yeah, by the way. It's just saying there's another case about Anthropic. He used pirated copies of their books to teach the AI chatbot Claude. So I don't know. So if you're publishing with Wiley, your stuff's going to be read by AI, whether you like it or not. So it actually is pretty useful for me because one of the big arguments against like open access is like, well, I don't want my stuff scraped by AI, but now that doesn't matter whether it's in copyright or not because the publisher is just going to license it for money anyway. Copyright maybe isn't the answer here, folks.

Maybe it's not the solution. Yeah, maybe it's not the main way in which authors get compensated. Now I have something to do with our. Oh, wow. our episode today. So that's the news. This is like the one thing I get all Ben Shapiro facts, don't care about your feelings. We were like, but I don't like it because I'm like, no, I don't care about that. I don't care. Copyrights not your friend.

Yeah, it doesn't really do anything. It turns out the ability to license stuff was out of your hands the whole time, which is a recurring theme, I think we're going to have today. Why don't have a lighter here? Sit. Stop it. Focus. The ADD just kicks Justin in the side of the head. Yeah. I guess I was smoking my pipe. Okay. So as a reminder, I'm just going to go through like what is copyrightable. We were, I mentioned in passing on the Pod Damn America episode, which you can go see Pod Damn America. Not Pod Save America. That's a different podcast. This is the cool one. I mentioned like if you put stuff on Instagram or whatever, you've already licensed your work away. for free to these companies. So it's going to be trained on artificial intelligence. It might get sold without your permission. You've really given up a lot of control over it. And really, that's one of the downsides of social media is because everything's so concentrated, you can't really control your work. I know a few people who are comic artists, like questionable content still has their own website, but not a whole lot of people do. And a lot of people who do still put their stuff on social media for the reach anyway, because what gets the money is getting hired to write a comic book or write a comic book. or something like that. So I do want to mention what is copyrightable. So to have copyright protection under US law, a work must be an original work of authorship in a tangible medium of expression from which it can

be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine. So includes literature, music, plays, pictures, and architectural work. Cannot apply to ideas, concepts, facts, which I think is going to come up, or other broad principles regardless of whether they are expressed in tangible medium or Otherwise, copyright goes into effect automatically, even if a work is not published. And then it's life of the author plus 70 years, unless it is an anonymous work, then it is or work made for hire, which is 95 years from publication or 120 years from the year of creation, whichever expires first. Isn't that generous of them?

They pick the one that expires first. Of course, you're the one who's going to have to figure out if this thing was ever published or when a person died. You're the one who expires first. Yeah. I mean, this isn't going to matter for an hour lifetimes. Because even if someone had died, like, the day, like January 2nd, 1978, their work is still under copyright for 70 more years. So that's going to be, what, the 2050s?

That's fucking bleak. Yeah. So it's really not a problem for our generation. But I do feel bad for librarians in the future who are going to, because everything is copyrighted the moment you put it down in a fixed content, even if you're Joe Nobody. And how are you going to find out if Joe Nobody died? When did he die? Like, everyone has copyright. it's not required to be registered. So if you find the unpublished journals of some person and

they're anonymous, like, you have to figure out, like, what do you do? So it's going to be, this is a growth industry actually for historians in textual criticism because you're going to have to date manuscripts by going, oh, this font was only used within this 10-year period. So that's when this had to be created. I was listening to a Bible podcast all day today. So I'm really on my textual criticism thing. So this is the first one, the first myth, want to talk about is writing a letter to yourself. This is one I've heard about from like no one younger than Gen X, I would say, has like mentioned this. I've never heard anyone my age talk about it. Mail a cassette to yourself in the mail that one too. It's like if you're a band, do you have to

mail this cassette or a CD of the recording to yourself or something? Is that the similar myth? I guess so. This one confuses me because copyright's been automatic for over 40 years. So the fact that this myth was like popular. It must have been popular before the 78 copyright act. This must be very, very old. This one was actually the hardest one to find because I, like law firms will be like, oh, yeah, this isn't real, whatever. And then they just like hire our law firm.

We're intellectual property specialists. And they don't like, it's not an actual article. It's just SEO advertising for the law firm. So they write these bullshit, you know, LinkedIn ass articles. So this one was really hard to come down. on. So both Wyant and Paul, Pam Samuelson, a law professor specializing in copyright and intellectual property at UC Berkeley, suggests that proof of invention is the more likely time when mailing to yourself, something to yourself might come into play because the United States

used to have a system of patent that was based on first to invent rather than first to file, which it is now. So one way you might prove that you had invented something, which is good for patents and patents are a whole different layer of fucked up from copyright. Yeah, you would want to prove that you invented it first. And you would want to like, you can't disclose something if you want an international patent. So you would really have to send it to yourself so no one else could see it. This is something I've had stressed to me that if you want, particularly by our commercialization department at the university who I make them handle the patent stuff, you have to be very, very careful. Like if you talk about something too loud in a public space, and someone else hears it, it might invalidate your patent for at least international stuff. In the U.S., you might still get patent protection, but international patent is slightly different. This is not my area of expertise, but it is interesting that this is probably the best origin for this myth. But it's such, it's so strange because it's been 40 years since copyright has been automatic, over 40 years. And yet people are still like, well, you can email something to yourself to prove the date that you made it or like have the metadata.

in the file. There's like new emerging versions of this myth. And so copyright myths are just really pervasive and a lot of them are strange. So that's the one I've heard about. Aren't there are a lot of weird kind of confusion. I wouldn't necessarily call it myths, I guess, that are confused trademarks and patents and copyright. So that's true too. People put like all rights reserved on stuff. I swear I saw something weird about that the other day, but I already forgot. This is one. I'm thinking about the woman who claimed that she copied. copyrighted the word cocky as a title for her romance series. Yeah, I remember that.

Yeah. Oh, you've not heard about this, Justin? No. She tried to sue. She tried, I don't know if she tried to sue or if she just threatened other people, but she had a series called Cocky Boys, and they all used the word cocky in the title, and she claimed that she copyrighted the use of the word cocky as part of a title,

which makes no fucking sense. Yeah, she was basically using it to intimidate. other self-publishing romance authors into changing their titles and stuff. And then somebody eventually was like, excuse me, this is absolute bullshit and blew her up on social media, basically. But I just think of that every time. I'm like, if folks want to learn more about this. Trademarking cock.

Yeah. Lindsay Ellis talks a little bit about this in her video on the lady that was trying to sue over a megiverse porn based on the fact that she thought that criticism invalidated fair use, weaponizing that, of course. And so Lindsay Ellis talked about some other like high profile like copyright and trademark cases in romance novels in particular because bitches be catty in this genre apparently. And it's really fun. So yeah. So it's a it's a fun video.

And that's where I learned about like legal eagle, I think, that cool lawyer dude on YouTube. Oh, yeah. I've never watched this stuff. I've only seen him collab with other people. He's good. I like his stuff a lot. He's got a really good video about copyright and AI actually and copyright and NFT. T's what it is. That like completely, it doesn't look at any of the other moral or ethical things of NFTs, but it's like, as far as copyright is concerned, these things are a fucking nightmare because of how like contract law works and that most of these people don't understand contract law. And so they have no idea what they're doing.

Yeah. I'm glad NFTs aren't a thing anymore so we don't have to talk about it. But I remember going through like NFT terms of services and trying to figure out like some of the arguments about copy. people would make around NFTs and like how you put like that copyright agreement transfer into the NFTs. And it's like not in any of that transfer that transfer language isn't sold. So technically the first person who made it still owns the copyright. Yeah. NFT doesn't transfer the copyright. Nope. That was one of the things he talks about was like you can sell NFTs, but like the copyright's not actually transferred and everything.

Because he made the same. He was using the example. Not an invite, but I think it was John Cena or something like got this one fancy car before it was released on the condition that he not immediately go and resell it. And what he do, he immediately went and resold it. But because that contract didn't get pushed along to the person who bought it from, I think, John Cena or whatever, like, then they couldn't actually get the car back. Because it didn't apply to the person who bought it. Right. And so, like, he got fucked over.

But like, the person got to keep the car, I think. Yeah, I would think so. You just have to fine him for breach of contract, whatever it was. Yeah. Yeah, contract law is fun and people don't understand it and I think more people should. So the next one is fan fiction, which is kind of like overlapping with the world of romance writing probably. There are a lot of legal issues with fan fiction and there's a whole Wikipedia page just on legal issues with fan fiction. But the one that fascinates me of like popular myths around fan fiction is when people put in their fan fiction. I am not the owner and I do not own the characters Hank Hill or Bobby Hill and I do not own Pokemon. And I wonder where that came from because you still see it to this day and it's

something it's been done for a long time and a long way. And there is a fan lore wiki about different types of disclaimers, which I'm going to actually make sure I put in the show notes because it's really fascinating like the history of like disclaimers that people put. So is this Anne Rice's fault or is someone else's fault. I think my theory is this comes from the fictitious person's disclaimer, because people see movies that say the people in this film are not, are purely coincidental. It's a coincidence of the dark carnival. I'm pretty certain it's an Anne Rice thing. Or even for that, is it Star Trek? It's either Star Trek or Star Wars. I think it was Star Trek, actually. Probably.

Redated Anne Rice. Yeah. It started doing that. So this was, basically a kind of like an admittance of yeah I know I don't own these characters etc etc I remember seeing it and being like back in like the early 2000s and being like does that work I hadn't thought about it but yeah I'm pretty certain it's it came from there being legal issues that happened before people it became popular so yeah like anne rice and Star Trek and I think it was Marion Zimmer Bradley who also sued fans for something like that. Yeah.

So I think it comes from that. Because they were like you touched your daughter inappropriately or whatever and so she sued everybody. Yeah. Yeah. Don't read Miss of Avalon kids. So I see where that line where I see where the fictitious person's disclaimer blurs into that. But yeah, I don't think that's the source of it. Every time I saw it was a war.

It was actually often had, please don't sue me. Yeah. Yeah. Part of it is a snarkiness. This fan lore page is actually really good. It actually has a theory that part of it is the decentralized nature of Fick posting made people like it allowed the proliferation of weird rules that people had in their disclaimers. It also shows that posting a disclaimer shows you're a member of an in group, meaning that you understand the norms of the group that you're posting in, which is also a very good theory. Yeah.

Or like you see one person do it and so you assume, oh, this must be how you do it. And so it just keeps happening because you've, that one fic writer you like who's really popular, they do it. So, oh, if you want to post a fan fiction, you must have to do that too, right? Yeah. That's what I thought back in the early 2000s. Yeah. And if there's anything I learned from the fucking Omegaverse video, as well as something about like Snapewives, is that like a lot of like lawyer ladies get really into fan fiction. A lot of lawyer ladies are romance writers too.

Yeah, like that one lady. Courtney Milan, I think. Yeah, she was formerly a lawyer, but I remember reading a Twitter thread with her where she actually talked about how many other copyright, or not copyright, but how many other lawyers she knew. Then Role turned around and became romance authors after they quit working in law. So, yeah, I think it's weirdly prevalent because of that. Maybe you get interested in law because you saw these disclaimers when you were like 14. And so you're like, I want to become a lawyer too or something. I don't know.

Yeah, could be. I mean, I definitely got interested in open access stuff because I was interested in free software because that was how I got software and piracy because of pirated stuff. I can see that happening. I got interested in copyright like through how convoluted music copyright is and like through the specific like use like sampling and like fair use in music and everything and just how copyright, how music makes everything more complicated. I mean, art in general, but like music is like you can't copyright four notes, right?

You can't copyright a chord progression. So like that's how I got interested in copyright because I saw how fucked it, how fucked music made it. And my boss was really into music copyright and her husband did like quote like fair use symphonies and stuff, which was really cool. Yeah, I definitely didn't bring up any, I don't, I didn't know any like major music ones except that like, you know, sampling is fair use and stuff like that. But yeah, I wrote a whole paper in grad school in my copyright class about sampling because of the fucking case with NWA, but the de minimis defense getting overturned because of like a two second baseline or whatever.

And they lost the case, which is bad. And they shouldn't have lost it. But I wrote this whole thing about how like sampling, like, it's important that these things be free and that sampling you don't. you shouldn't have to license to sample because like entire genres of music that are most popular among people without money, like are the ones that have sampling in them. It's like a racial issue. It's like a racial justice issue as well. Like this is like an example of systemic racism is saying that in order to have sampling in your music that you have to get licenses. Yeah.

It was also a problem with the blurred lines case was it was copy. You could copyright a groove of music and it wasn't even. like a particular progression. Stupid. Yeah. It's a very, very bad case. Hopefully it gets overturned one day. Yeah.

Fuck Robin Thick. But like, again, he should not have lost that case. Let me see if I have. Oh, I actually know a music one. I see this all the time in one of my guilty pleasures is like commentary videos because they're fun to put on in the background. And one thing you'll see people do when they're talking about TikToks and stuff is because like TikTok and stuff, like you can have like license.

music and then through an agreement. But when you put that on YouTube, it's a whole different system. And so you'll see people like singing shitty versions of the song to replace the audio. And when that's actually not anything different, that's just you making a copy of the song still. Like that's still, it's not going to get picked up by the algorithm that detects plagiarism on YouTube. But you're still making a copy.

copy, like, right? Like, you're making an unauthorized copy of that song. You're just not going to get caught by an algorithm. Like, what if you just let it play? But that's when I learned about recently because it's like, oh, okay, yeah, they're going to do a little parody version of the song. But if they're just doing the song and not changing anything beyond the fact that they're bad at singing acapella, that's not actually fair use or that's not actually like evading copyright. You're just not going to get caught as easily. But that's one that's really popular. I've seen now as like a music copyright myth. Yeah.

I mean, I did a presentation a long time ago about like the confusion of like copyright rules and platform rules, like algorithmic rules and how the rules on YouTube are not actually about fair use or anything. You could still do something. It's fair use and the algorithm will catch it and take it down. But it's weird what gets caught. I have more about YouTube in a minute. So the next one I have is social media myths. So this one's one of my favorites. I've seen a long time.

I just put one in there that Luther sent me. So usually you'll see a post of like, I do not give consent for Facebook to read my post. So here's the one he sent me. It says it's like on top of like a desaturated lesbian pride flag. And it says, goodbye meta AI. Please note an attorney has advised us to put this on, doubt it. Failure to do so may resolutely. result in legal consequences. As meta is now a public entity, all members must post a similar

statement. If you do not post at least once, it will be assumed you are okay with them using your information and photos. I do not get meta or anyone else permission to use any of my personal data, profile information or photos. So, yes, you did. 181,000 likes. Yeah, that's Instagram for you, I guess. No, I remember when this used to go around on Facebook, back when I was in high school, it's like, oh, they've changed a setting in Facebook and they can use your data now. So you have to post this. It's just a chain letter. Basically. Yeah. Well, and I wonder how much of that is like, oh, the terms and conditions changed and now they have all of these permissions. And it's not

actually anything changed. It's just somebody looked at the terms and conditions in depth for the first time and noticed something they didn't notice before. I don't know if that happens. But yeah, like they can now use your whatever, you know. Yeah, it's it's a modern social media chain letter. The valid one is actually, oh, by the way, all your shit on LinkedIn, you have to opt out of it to not get like there's like a setting you have to go in on LinkedIn now to like turn off its ability to use all your shit for AI. And it's turned on by default. Isn't that a, isn't that because of the European Union thing? Probably, but it's turned on by default.

You have to opt out of it instead of opting in, which is dumb. I know it's different in different countries. I know there are some places where people don't see the option. There are some countries where LinkedIn did not give people the option to opt out. Yeah, I opted out. It worked here in the United States. Yeah, I don't even think I have a LinkedIn anymore. I might have one connected to my work account for LinkedIn learning because we had like,

my university got LinkedIn learning for free for like a year in like 2020 because everyone was working at home. And they're like, oh, what are we going to do? It's like, I don't know, your job. Like, just to your job. If you're not busy all day, it's fine. But everyone's like, well, it's time to like reskill and do some stuff and like learn how to write an email better because you need to do that now, which is good because we're distributed campus and people did not know how to use Zoom. And it was a fucking problem. So one upside of the pandemic was people had to learn how to use Zoom. This one kind of reminds me. I'm trying to find it. I wonder if this one is kind of a weird myth because people, because of this kind of thing might work for a search and seizure.

So I remember I'm trying to find it. had a phone background to download it at one point in time that says I do not consent to the search of this device. Yeah. Because that's like that is considered like legally like I don't, that that's considered legally binding if like TSA or something takes your device and tries to actually like unlock it. And this is weirdly, but it's social media version. Like I don't want you looking at my personal info and photos on my on my phone. Is there Electronic Frontier Foundation or crime? think that puts up on background. Electronic Frontier

Foundation because, yeah, I follow them more. Because it goes around like when the George Floyd Uprisings happened in 2020, it went around again because people still can't decide on whether or not it's good or bad to have your phone on you during a protest.

I mean, I still think having a burner phone is pointless because it's not about a single activity. It's about a pattern of behavior and if you just leave your phone at home and then you go somewhere at the same time that there's a protest. They're going to know where you are. I'm sorry. But like, yeah. And it's so many weird complications. Yeah, that's what the catch people using tour is like all of a sudden your IP drops off at the same time this other one comes on and like the timing is exact. Like that's how

they catch people doing shit on tour. Well, and I think for this it was like they can if they seize your, if they have your phone and it's locked, they can, it's legal for them to just hold it up to your face if you have recognition. Correct. Or put your thumb or whatever on your phone. Like that's legal for them to do to you. But if you have like a password or a passcode or even like the swipe code, like they can't, they can't unlock it. And that's so and I think that part of that is if you do have the I do not consent to the search

of this device, then it'll be considered less legal for them to have done biometric work around, I guess. I remember reading about it when I downloaded it, but I don't remember it all clearly now. Because was it Dylan Roof or whatever that fucking Nazi kid was who like shot up a synagogue or church or something? And Apple refused to unlock his iPhone when law enforcement were like, can you unlock this kid's iPhone please? And they were like, no. It's a legal search and seizure. Yeah.

Yeah, they wouldn't unencrypted and everything, which is like good. I wish I weren't for such a shitty person, but, you know. Yeah. Some other company did unencrypted, though. No, boo. Yeah. So a lot of this stuff like, you know, I wonder, I found the EFF lock screen thing, but I don't know. This is what boggles my mind with people like, oh, Android's the better, more secure phone.

I'm like, Android's just Google. Like, why do you think that's the better, more secure option right now? They're not, it's not cooler, more secure or more private to have an Android phone now. you have your own operating system on it. Otherwise, it's just a Google phone. I like how the EFS has on the page with all of the lock screen images. Note that EFF cannot guarantee that the use of this lock screen will prevent a search. Yeah.

Because, okay, yeah, that's there at the bottom. Because I was looking at the-cover your assets. There know-your-rights page, and they don't, like, explain the logic behind this, like, image. So I don't think it's, like, legally binding in any way. But if you're in it, You know, if you were in a court case and you said, like, the police never got a warrant, and then they did, they used some cracking tech, you might have like an argument there. The thing is always also with these things like intent, like the guy who tattooed his do not resuscitate on his body, they still had to like form a committee of ethics to make sure that that was legally binding in the moment because like it's not like established precedent. But they did honor his wishes, but they had to like check first because it's, I think this is one of those things where it's.

It's not like clear cut, but couldn't hurt, I guess. They definitely can't make it worse. Yeah. You're supposed to them to AI scraping. This is also just like, like we were talking about, like with copyright in general, like none of these laws or disclaimers or anything, none of them, even if they did work, were ever meant to protect an individual person and they're right. These are only so that corporations can save their own asses in court when they get sued.

That's the only purpose of any of these things. Like you, a person, even if they're. this did work, it's not going to work for you in court because you don't have the money or resources to make it work for you. These are for corporations with money to save their asses. That's all it is. Well, and isn't part of that, like, it's one of the things about fair use that I've seen people say multiple times, especially like when it comes to AI, the AI is that like, oh, well, this is fair use? And it's like, well, is it, though? Like, is there a direct legal precedent that this exact use is was ruled as fair use because it's it's all a gray area until a court decides right like

that's actually how fair use works right yeah because that's what i mean i mean i there is the argument to be made that like it's like because i know like when i did like copyright first responders that's like day one kyle courtney is like fair use is a right not a defense because that's the whole thing like fair use is a defense not a right like you don't know if something's fair use until a judge decides on it but is like technically true, but then we do have the right of fair use. Whether or not AI is fair use, I think is

more gray area. I personally, even if I don't like it, again, I think a digital commons is good. It's just it's bad at not doing a plagiarism, but the act of scraping something and having a data set like that and doing remix stuff in and of itself isn't bad. I don't know.

Yeah, there was a legal paper I read. that, like, recommended that a different legal standard be used so that people could use fair use more, like, with confidence. So, you had, like, if you, they were saying that, like, if you had a small, like, I think it was like, if you use the, like, the small claims copyright court that exists, and then change the type of precedent you used, you could actually have, like, affirmative cases where a judge would just look at it and go, oh, it's already been decided. And then, like, the case wouldn't go anywhere. They wouldn't even, like, hear the case. So, And it was like to make copyright more clear for users, but obviously that's not anyone's priorities.

So I don't see that happen. It was an interesting legal article. I think it was in the Texas Law Journal, if I can find it. Like I know we're going to get into this later when we talk about the percentages thing. But I tell people that numbers aren't in the fair use law and that all of fair use fits on a PowerPoint slide. You're like, wait, what? I'm like, yeah, actually. Like, fair use is not that opaque.

It's just judges who don't know what they're doing. It's my argument there. Judges are dumb and don't know things. It's often true. Yeah, especially where art is concerned. Yeah. Hey, buddy. How'd you be then?

Because I live here. So I got in. My door was closed. Not anymore. Your door is definitely open. I know it is now, but. Cat magic. I guess.

Maybe my roomy let him in. Okay. So here's one I hear a lot on podcasts. So Patreon myths. And I worry about people who do this. There are a lot of people who on their Patreon bonus episodes will put full songs in it because it's behind the paywall. So it's not going to get caught.

All Patreon has to do is turn on a copyright checker. And because like you could just do, it's still copyright infringement. I know someone who did like a whole music podcast where they talked about, they would play the song and then talk about it. So they were talking about like whole genres. And they did it on Patreon because they were worried about getting caught, which is true. Like, if you tried to do that on YouTube, you would definitely get demonetized. Patreon just doesn't care right now about copyright, but it could in the future.

And then you don't want to go back and have to unedit all of that stuff. And because we've already seen this with, like, adult content with Patreon, right? They made the choice to, like, turn that off. Yeah. Like, we couldn't have that anymore. So, yeah, it's the company that monitors IP. It is weird, though, because I feel like you. YouTube has different rules when you don't list videos.

If you have a private video sometimes, I feel like stuff doesn't get caught as much. Because I definitely, when I, actually that same presentation I was talking about, I used to clip from the Andy Griffith show. And I had it sitting in my YouTube account for like a month. But it wasn't public, so it didn't get viewed. But I don't think YouTube ever ran a scanner on it. Or if they did, they don't have the Andy Griffith show in their database to check for, which that also might be the case. But content ID generally catches almost everything. So anyway, speaking of YouTube, this one is one of my favorites.

It's the YouTube I don't intend copyright. I don't know why people always phrase it weird like that, but whenever they're just putting like trunks versus cell sliplimpbiscuit dot MP4, they always put no copyright intended, which is very similar to the fan fiction one, but I don't know where this one came from. I can't, I think it just started on YouTube where YouTube didn't care about it. about piracy for a long time and then it started to once it got like acquired by Google. And that was when it stopped allowing people to just pirate full TV shows and everything. Although people still do, but they just, they just mirror the videos or whatever, but or they just

keep making new accounts. But anyway, I don't know where this came from, but it did lead me when I was trying to find out where this came from, it did lead me to an article. So I guess this is another news section. YouTube AI Audio Eraser Tool released a leap forward for creators. So YouTube made an AI tool that will erase copyrighted music from your videos and keep your content safe from claims. So they've given the power of policing yourself to you. So this is probably very useful for streamers because usually what happens is if you have like music going in the background, you might get caught when you put the Vod on YouTube.

but obviously this is like an AI thing, so it's going to be computationally heavy, and I can't imagine it's always going to remain free. I don't know if there's any current... YouTube has put a lot of AI features in, so like a conversational, they've plugged it into like a GPT to make a chat bot. I think it's also done like automatic chapters for a lot of videos,

so people have been complaining about how the chapters for their thing are completely wrong, which I've used that before. I think I had Alphonic make chapters one time and it was just all nonsense, which was fun. I think Trash Future talked about some of the ones that YouTube made for them. And I think they might have posted a list of all of the different like summaries that it made, which was very funny because it just makes up people and here's names wrong and all kinds of stuff. But this AI Eraser tool, I don't think it costs any money, but I can't imagine it'll

remain free forever because I can't imagine it won't cost a huge amount of money. But this might be one of the ways in which AI kind of actually does stick around for a long time. It's tools like this that are actually useful. Yeah, I mean, there's this music theoretician person on, I watch his stuff on Nebula. He will, like, go over specific songs or specific concepts in music theory. And he, like, hand draws everything. It's really cute. But he said that, like, there's actually one of the ways that AI has been really useful for, like,

people in his line of work is being able to sort of separate. It's obviously not perfect, but where there's not a multi-track already extant of something, it can separate vocals from like a drum line or something. It can isolate out the various aspects of a track. And this is partly how they did that, quote, big air quotes, your new Beatles song. It wasn't that they made a John Lennon AI voice, is they took a shitty demo recording that already existed and used tech like this on it to like separate stuff out.

So like that's an actual useful thing. It's just pattern matching, right? Like again, this is one of those things where it's like a thing that's AI has been in use forever. And we're just marketing it different now. But like this is an actual legitimate good use of that kind of tool. Is this kind of like isolating things out? removing things from the background in a way that was just like a pain in the ass to do before or really hard to do manually.

Yeah. The annoying thing about AI stuff is companies aren't going to tell you what kind of technology it is. So they'll just say it's AI. So you don't know if this YouTube Eraser tool, does it use a GAN? Does it use GPT? Does it use a large language model now? So like, you know, what's it using to separate out the music? Like, is it like the stuff like in like photo editing tools now where again was there,

before, but now it's being called AI to help. You know, if you have to take a big scan of a map and you have to do different photos of it, oh, it'll stitch together the edges for you so you don't have to do that manually now. Like, that's AI, even though that's been a thing, you know. Yeah. There was, there was actually something I posted in the Discord the other day because I didn't realize it was a GPT, but it was What Beats Rock website, which is still very fun and is a good use of a GPT, but you just type in question.

it'll ask you what beats rock and then you can say paper and paper covers rock right what beats paper and you can't use the same word twice but that's all running on like a gpt i think it runs on clod or something which is like it's just a fun single use website it's in the it's in the spirit of like a fun website but it's also like kind of stuff you could have done before so that's why i didn't clock it as ai right away because it's no different than like a type adventure game that you could buy in the 80s where it's like how did they know to expect that Well, very clever programming usually. But, okay, this next one is one I have to deal with at work all the time in academia. The 10% rule, people have gone on a lot. This actually came from a case. 30% or whatever percent, you know. Yeah, it comes from like recommendations that were kind of going around at the time. And then the judge, like, mentioned it.

I actually got this from, I found something on a major law school's website. and a lot of the stuff they had about academic rules for copyright. I'm positive we're wrong. It was like their fair use guide for educational materials, and it had stuff like this in it. But anyway, it was the case. It was the Georgia course pack case. The court viewed the copyright's educational fair use as a minimum, not maximum standard. The court proposed its own fair use standard, 10% of a book with less than 10 chapters,

or of a book that is not divided into chapters, no more than one chapter, or its equivalent. in a book of more than 10 chapters. And that was Cambridge University Press versus Georgia State University. But that wasn't the final saying on that case. Generally, a small portion of work is more likely to be fair, especially when the excerpt is a mirror image copy and the purpose is non-transformative. So if it is just a copy, less is better. But if you're copying the whole thing and you make a transformative use, then that is still fair use.

The hardest a word or whatever. Yeah. The 11th Circuit reversed the approach, noting fair use analysis must be performed on a case-by-case work-by-work basis, you know, making it more gray area. But yeah, there are no rules for how much is fair use. This came up when there was this book. I used to use this as an example. There was this guy who wrote a book and it had like a paragraph about something scandalous about Trump. And the Internet Archive had a copy of this book and people were like checking it out all the time and looking for it and making copies of it.

You could argue that if you only copied, like, that chapter that had the stuff about Trump in it, that would be the heart of the work because that was why people were copying it. So if you only copied another, if you copied all the other chapters, might be a fair use. If you only copied that chapter instead of buying the book, that could be a heart of the work sort of case. Yeah, like, there was a similar one with like another book about a president or a Watergate thing where like the only reason anyone actually cared about it. was this one bit that had some dirty gossip in it or whatever. And that part was like reproduced in like a like newspaper article or something. And people like, but it's a small part. And it's like, yeah, that's the only part people give shit about.

Which I think is a funny way of telling someone like, it's a good way to read somebody. Be like, listen, like, no one cares about your shitty book except for this like two paragraphs. I also get ones about educational use. So educational use must be in a classroom, for example. So a lot of people, usually what happens is I'll get a request for an event where they want to know if they can make an educational use of like screening a movie. And I'll say, no, that's an event. You have to have like a performance license because it's not within a classroom as part of a class. So I get that a lot where people on campuses think they have like more educational.

educational uses. It's like, no, you actually have fewer, or you have the regular amount of fair uses. And so when it comes to screening a movie, you still need performance rights. Remember in my previous job when I had to, I, a professor requested that I buy this documentary. And when I went to go look at the distributor website, they're like, if you're buying this for a classroom at all, it's going to be $400 because you have to get the public performance rights. I'm like, that's fake. No, I don't. I was like, do I need this? I don't think I do. No, you have very clear rights about that.

Because there's also like the Teach Act. You can do that online. Yeah, those are big. I tried to find something about AI and I just threw this random article into the notes. And they have like a list of like myths or facts. And it's generative AI models contain copies of their training data. They say this is a myth. Generative AI systems do not store compressed or bitwise copies of the data.

they've been used to train on. But I remember talking to Johnny about this, and they were saying it's kind of like putting, when you're training a model, you have the data you're using, and you're kind of algorithmically running it through a cheese grader to get the same image again. So you're doing like math on an image to still derive it because it still has to use an actual original thing. Yeah. This also sort of reminds me, again, this is more trademark and also like the fictitious character thing. So I remember in, sorry, I'm fiddling with a bone folder and I accidentally threw it across my desk, sorry. And Dan Olson's video essay line goes up about NFTs and Bitcoin. Near the end, it's talking about this one Dow that did like an NFT meant of like an Inuyasha thing without getting any sort of permission ahead of time. Right. And when asked about this, they were like, well, there's a between like, they're like, oh, there's a trade trademark. copy.

You thinking they were slick. But they're like, but it doesn't matter. It's fucking, it's on the chain. It's not a blockchain now. So there's like no going back. But also like, that's not the actual and Iashi thing. That's like a drawing that someone in our doll made.

So it's not a copy. That's the original. What are you thinking about is trademark. But like, again, it's already, it's already on the chain, bro. Still coming back as if it's putting something on a blockchain. just oops I guess you can't go back now copyright what's the fucking like copyright like I need like a copyright ended or something it's so fucking funny there's no going back it's like the exactly

no copyright law in the universe is going to stop me stupid that's pretty good yeah it's not a copy it's the original yeah NFT people had like chronic understanding of copy But most people don't understand copyright. Most people don't realize tattoos have copyright. Yeah. It's still a copy. It doesn't matter if it's on paper or skin. Whereas the thing that like boggled my mind was that I learned that like you can copyright and index because it takes creativity to arrange it and make those decisions.

There's what speaking of copyright law protects data, end of story, myth or truth. They say myth. Copyright law safeguards original expressions fixed in a tangible medium but not the underlying facts. Ideas, facts, or information. That's not entirely true. You still have like cite shit. Like plagiarism can still be a thing. Well, yeah.

Also, it comes into like this thing of like, just because something's a fact doesn't mean it's not copyrightable as part of the work. Otherwise, you could only copyright things that were false. So you can't just take an expression of truth and say that that's not copyrightable because it's true. So facts can be copyrighted. They just have to be in the act of the work. So this was coming up.

This came up with like someone reusing part of like an academic journal, I think. But someone had to point out, it's like, no, you can't just say it's copyright. It's not copyrighted because it's true. That would imply the only false things can be copyrighted. Right. Now like this comes up with like what was like recipes, right? Because like I can remember like recipes you can't copyright them. It's like everything else at a cookbook.

Like the photos and the little stories and everything. But like there's only so many fucking ways you can put ingredients together. you know, like putting ingredients together isn't what's copyrightable. It's how you write it and the photos and shit that are. That's why you can have cooking shows where you're like, here's the exact ingredients. And I'm like, I've watched this dude, anti-chef and his name is Jamie. And so he does Jamie and Julia, like Julia and Julia. And he goes through like all these Julia Child recipes.

Just fully will like show pictures of the cookbook and like go through the exact ingredients and everything. but like is it's a fact you know yeah i think it's also came up with phone books in the past like you can't copyright phone books because they're just because they're just data but the yellow pages you can i think because that's how things are like the ads are arranged or something i don't remember this case so i shouldn't have brought it up but yeah but like the actual like order of names because it's just alphabetizing yeah i think it's like the yellow page is for creativity yeah yeah that's another way to get someone's like bro it's not creative enough yeah there's a lot of good ways you can like own somebody to say their stuff isn't copyrightable because it's not creative enough

or it's like people only give a shit about this because of this one thing you know copyright stick burns you didn't copy this photo good enough cavendie your bad had tattoos and therefore it's fine i don't know if they decided it wasn't similar enough or that she had fair use and the article wasn't very well written i think it's funny if it's the fact that it just wasn't similar enough. That would be funny. It's just like one of those really bad tattoos, you see. But she did make a drawing of the photo first. So I guess there was like differences in the original reference art as well. So yeah, that was kind of, that's all of the ones that I had categories for. And then to wrap up, I just have the big myth, which is artists need copyright to live.

We've already talked about how it has to do with contracts, the Corey Doctor episode. There are a lot of assumptions. I'm being a boot liquor. Yeah, there are a lot of assumptions that go into copyright that are patriarchal. You can read April Hathcock's work about this. But there's like a series of relationships in production that mean there usually isn't just one author who you can call the author. Like that's a big assumption that's ideological because a lot of people will go into

making a work, but only one person gets to own the copyright at the end of it. Like the editors don't become partial copyrighters or partial copyright owners or copy editors or usually in academia, the person's wife who did a lot of the research in writing usually doesn't get copyright because, again, it's like a patriarchal system that accrues information to the person, to like one person. Most people who make art for money do not get paid in IP. They're paid in wages, which is obviously a relationship. Like, you don't get the IP of stuff that you make.

Most people who work for a company. Well, like, depending on what university you're at, if you're an academic, you might not even have your copyright like your university might. It just depends on which one you're at. Yeah. And I always, I have a class that I do with a professor where I talk to his PhD students because they're going to become teachers. And so I talk to them about stuff that how copyright will affect their life when it comes to like making course materials like your university might own that. But, you know, like at my university, you don't own it, but they have a license to use it for a year after you're severed from the university. So it is good to like keep your own.

copies of stuff. My university does claim that it owns Zoom recordings of classes. And I talked to our lawyer and I was like, I don't think that's true because it would imply that like you would own anything made on like a university's licensed off Microsoft Word document, which you clearly, we clearly don't believe that because faculty own everything. They, all their papers, articles, course materials. So like, I don't, I don't see how you can claim that. And it doesn't come from just our university, it comes from like the Board of Regents rules. So I, for the whole system. So I was like, I don't think this is a right decision. But if they used something that wasn't provided by the university, if they used a different screen capture software, the rule wouldn't apply. So it's like,

oh, okay, why make the rule? Like, why even claim copyright? I guess so they could like take stuff down if they wanted. I think also as they're with like adjuncts who work at multiple universities and reuse stuff between universities, I think is my reason. Yeah, I know, right. There's so many times when someone can't use something in their course and they're like, I don't understand why it's not working. It's like, oh, that's the library link for your other university. So it'll be like the other university's canopy link. And it's like, no, you got to use our canopy link for the students to get in and for it to work on campus. Adjuncts, man, it's bad.

It's bad out there. Yeah, copyright is deserved because it's your idea. Ideas can't be copyrighted only the form. I don't know what I was getting at in this part of the notes. What the hell is? I never actually understood, I guess, related to that. And this is kind of back to the fan fiction thing. Like, well, you can't copyright an idea.

So what about like fictional characters? Like, is that a trademark thing? Like, what is that? Like, when characters, when you like can't, you can't have a character that's too close to this one specific fictional character and something. I'm like, but that's that copyright? Like, I've never understood that. Or is that just people being overly cautious? I think it has to do with if you are using the exact character.

Like the idea of like a detective who uses like inductive reasoning is not copyrightable. So you can have all these like Sherlock Holmes ripoffs. But if you're making something that is Sherlock Holmes, you can only use the aspects of his character that are in the public domain if you're going to call the character Sherlock Holmes. But if you call him Merlock Bones and he was like a wizard detective, then I don't know if it would matter. But yeah, the thing about characters is always weird, like the Mickey Mouse having his gloves, Winnie the Pooh and his red shirt. Yeah, because it's like if it's not, yeah, I don't know. I wonder how much of it is. They don't make fan fiction illegal, right? Yeah. The fan

fix's not illegal. Well, well, and I wonder how much of it when it comes to like published, like published works, not, well, like traditionally published works, I guess, like not just people who are writing fan fiction. I wonder how much of it is less of a copyright and more of a legal. Like, I don't want to get, okay, well, yeah, I don't want to get sued, but less about copyright and more about, like, defamation and stuff. Like, I remember Chuck Tingle talking about this kind of with Barry your gaze about how his lawyers came back and were like, you have to change the name of this character because, like, we, that's too big of a legal risk. And it wasn't a copyright thing. It was because it was like a defamation thing maybe. I'm not sure. I, now I want Chuck Tingle to

come back on and talk about that. Now that the books were like trademark, if it's a specific fictional character. Well, I don't, well, with that, I'm not sure if it was a fictional character if it was because it was too close to a real person. Yeah, that would be the fictitious person's disclaimer. Yeah. And that is definition. Yeah. Yeah. That's a good question, Jay. Like. Because I've never understood that I'm like if fan fiction's a thing. And if you're just using a likeness, because I, because I know that like, you know, like, Shirley and the town you grew up in, there was like pre-k or daycare that had a bunch of like, Disney characters drawn all over it or, you know, something like that, right? A taco stand with Goku on it. Like, completely can't do that. But that, to me, feels more like a licensing thing than a copyright thing is like a trademark. I guess not trademark, but it's like a licensing thing as opposed to like a copyright thing.

I don't know. I think the design is considered part of the form that is copyrightable. Is it? Okay. It's the arrangement of the things create the form. It's very, like, this is also like copyright's so ideological. So like the form idea distinction, there are a few cases that work it out, but it's actually really fuzzy.

But I think fan fiction in particular is legal because it has to remain non-profit. Because I think if you publish something and sell it, a lot of fan fiction gets struck down, but not all the time. Because it's technically, because it's again, like, there are fair use cases where money is made. And so at that point, it's, that's why it's like people will put, well, like, no, like, there's that the one that always gets me, that one photographer, the one artist who took photos, rosters or original people or something, and then like Photoshopped like guitars in their hands and made a bazillion dollars. Those were not his photos and he made money off of them. And people were

like, that's not fair use. And it's like, I know it completely is. And that's the one that always would trip me up in like fair use workshops. Because like, no, that's a complete fair use and that person made money. Like, like, that's like, I know that it makes it more likely in your favor that it's fair use if you don't make money, but that doesn't mean that you can't. And so, like, the argument that you can't make money off of fan fiction, like, people post the, like, they're like, like, you can, like, commission fanfic for people. That's like a good thing. I see people do is, like, oh, this was commissioned by this. Or, like, if you want to join my Patreon for my fanfic or whatever, like, that's, like, totally a thing people do. And then there's the, you know, the, you know,

basically filing the serial numbers off, like 50 Shades of Grey is just Twilight Manfic with all the names changed, kind of. But otherwise, it's the same exact thing. I don't know. Like, this is always, like, confuse me because it's like if you can make money and it be fair use. Yeah, but it depends on all of the factors of fair use. So, like, money is one of them.

And the other one is, is it parody? Is it commentary? So you could use a fictional character to shed light on the original work. This is all mentioned in that legal issues with fan fiction wiki, Wikipedia page. If you, I think the commissioning fan fiction thing might genuinely be a case of there's just no enforcement. And if you did get sued for that, I think you might lose. Yeah. I don't know.

I think it should be like, I don't know. I don't think that like making money off fanfic should be the thing that makes it not fair use. You know, like I don't think that the only reason that fanfic is fair use is because we don't, is because people don't make money off of it. It's the main reason for, I think, most of the sites that run. Yeah. But if you were to publish a book, like, this definitely happens a lot where people make fan fiction of like Harry Potter and then sell it. And like the publisher can get in trouble. Most of the shitty sci-fi that has come out and most of the shitty romance novels that have come out in the past decade have been fan fiction with their serial numbers filed off.

Well, the filing off of serial numbers counts in this case. Again, you can't copyright the idea of, you know, a Bavarian housewife who also solves mysteries with inductive reasoning. Like, it does matter if you call them Sherlock Holmes or Burlock Bones or whatever I said. Merlock. Merlock. Oh, yeah. Which it should be like Morlocks like in the Time Machine.

Yeah, I was thinking Merlock from, Merlock's from World Warcraft. Little dudes run around go, blizzard. Yeah, Morlocks. Those come from the time machine. Morlocks are people. Yeah, breathe the time machine. They are people. Yeah. Well, they're not, they're not Murlocks. They're Morlocks and Morlocks are people.

Yeah. I don't think you should be comparing them to Murlocks. All right. Okay. So that's the episode. I might do more if I find more myths, but these were all the ones that were kind of rattling around on my head. We have a Discord, links in the notes. And then I'm going to put some of the stuff that I was referencing in the notes as well. This is also like, this should show you how complicated copyright is because the three of us know more about copyright. than most people, and we're still, like, disagreeing with each other. What the fuck is this? Like, yeah. Yeah, like, I'm literally gone through the copyright first responders thing.

Like, I literally am trained in this. And I'm like, I'm not sure, actually. And also, there's contradictions in the case law between, like, there's split decisions in different circuits. Like, the stuff doesn't always be off the way. Yeah, the stuff doesn't make it all the way to the Supreme Court. Sometimes it just sits in a circuit for a while and you get split decisions. It is so illuminating to go and read the read case law for this shit.

It's actually not that complicated. Like I was surprised the first time I read some copyright case law about how easy it is and how often it's just people being petty-ass bitches and judges going like, yeah, I find most cases are pretty easy to read because most cases have to cite all the precedent that they build off of. So you can always like follow it back down the rabbit hole. The things that are actually hard to read are. Law Review articles. Those are actually hard to read because they're formatted like crazy people. We need to do an episode just about law journals and how they're different from all other academic

journals and they're just really weird. Arthur, what do you think? Okay, Arthur's giving me the light. He's having a good time. Yeah, all right. He's exploring. Okay, good night.