Tradition has it in the British Isles that women are allowed to propose to men on Leap Days. The custom is known as "Ladies' Privilege". Some even claim that the Scots enacted a law in 1288 enshrining this custom, and should the man refuse the marriage proposal, he would face a fine. As much as we'd love this law to exist, legal historian have tried in vain to find its historical record.
This Week:
- Silicon Valley tests its foundation at the Supreme Court
- OpenAI strikes back against the New York Times
- A Supermarket Mega-Merger Hits The Breaks
đ INTERNET
âWhose Internet Is It, Anyway?
The US Supreme Court heard oral arguments this week in a case (well, technically two cases) that could shape the future of social media and the Internet. The cases center on laws enacted by Florida and Texas against major social media companies like Meta and Twitter from restricting or even removing accounts over matters of speech. At the heart of arguments is whether social media operates with the protections of a common carrier, thus allowing for all speech to exist on its service unabated, or social media operates more like a newspaper, thus enabling editorial moderation.
Paul Clement, the lawyer who represented the social media companies, argued that if these firms were to follow the Texas and Florida laws, stark choices would arise: "...if you have materials that are involved in suicide prevention, you also have to have materials that advocate suicide promotion. Or if you have those on your site that are pro-Semitic, then you have to let materials onto your site that are anti-semitic,â Clement stated, notes Politico.
Speaking with NPR, Matt Schruers, president of the Computer & Communications Industry Association, added that "there is nothing more Orwellian than the government trying to dictate what viewpoints are distributed in the name of free expression âŚAnd that's what's at issue in this case."
But the solicitor generals of Texas and Florida disagree. "The platforms do not have a First Amendment right to apply their censorship policies in an inconsistent manner and to censor and deplatform certain users," Henry Whitaker, Florida's solicitor general began. "Everyone, left right or center, should oppose government control of speech. ..because as it may be your person in the White House today, we know that that will not be forever. And that's why the First Amendment is so important and so paramount."
For their part, not all justices seemed to follow the case. Justices Barrett and Thomas seemed rather confused by the legal ramifications of Florida and Texas's laws and how they tied in with federal laws and precedences. âIf what we say about this is that this is speech thatâs entitled to First Amendment protection, I do think then that has Section 230 implications for another case,â Barrett said, before adding that "itâs always tricky to write an opinion when you know there might be landmines that would affect things later.â
Section 230
So much of Internet law appears to rest on the foundation of a single legal code: Section 230. Originally enacted in 1996 (when the Internet looked and functioned and was of the exact same importance to our lives as it is today) as part of the Communications Decency Act, the code basically protected Internet companies from any speech made on their platform. "âThe primary thing we do on the internet is we talk to each other," Eric Goldman, a professor at Santa Clara University, told PBS. âThe Supreme Court could easily disturb or eliminate that basic proposition and say that the people allowing us to talk to each other are liable for those conversations. At which point they wonât allow us to talk to each other anymore.â
THE VERDICT:
At stake is the very validity of Section 230. Should the Supreme Court rule in favor of Texas and Florida, it may very well reshape the Internet as we know it. While the Court seems split on the case, they are believed to be leaning towards the social media firms. A decision should be reached by Spring.
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đ¤ ARTIFICIAL INTELLIGENCE
OpenAI Wants To Close This Lawsuit
Following a landmark lawsuit brought by the New York Times against OpenAI and Microsoft over copyright infringement by large-language-model systems, OpenAI is now striking back. In a motion filed this week, the artificial intelligence company responsible for ChatGPT, says that the Times used âdeceptive promptsâ to get ChatGPT to copy its content.
According to The Verge, "OpenAI asserts that the Times exploited a bug that itâs currently working to fix and that the outlet fed articles directly to the chatbot to get it to spit out verbatim passages."
OpenAI further argued in the motion that âin the real world, people do not use ChatGPT or any other OpenAI product" to serve up articles at will. âNor could they.â
Ian Crosby, lead counsel for the Times, responded to the motion in an email to The Verge saying, "that calling the outletâs efforts a hack is a mischaracterization and that the outlet was 'simply using OpenAIâs products to look for evidence that they stole and reproduced The Timesâs copyrighted works.'"
He added to Ars Technica that "OpenAI, which has been secretive and has deliberately concealed how its products operate, is now asserting itâs too late to bring a claim for infringement or hold them accountable. We disagree. âŚIt's noteworthy that OpenAI doesnât dispute that it copied Times works without permission within the statute of limitations to train its more recent and current models.â
It's undoubted that the future of AI and the systems that power it will be shaped in large part by copyright law. However, âthere isnât a clear answer to whether or not in the United States that is copyright infringement or whether itâs fair use,â Ryan Abbott, an IP lawyer at Brown Neri Smith & Khan, told the New York Times. âIn the meantime, we have lots of lawsuits moving forward with potentially billions of dollars at stake.â
But Jane Ginsburg at Columbia Law School is a bit more skeptical. As she told the Times, "Ultimately, whether or not this lawsuit ends up shaping copyright law will be determined by whether the suit is really about the future of fair use and copyright, or whether itâs a salvo in a negotiation."
Sarah Silverman
The Times isn't the only entity to have sued OpenAI over such infringement claims. Last year, comedian and actress Sarah Silverman joined other authors in six claims against the AI powerhouse: direct copyright infringement; vicarious infringement; violation of the Digital Millennium Copyright Act (DMCA) by removing copyright management information; unfair competition; negligence; and unjust enrichment. This month, a judge dismissed all claims except direct infringement. "Nowhere in plaintiffsâ complaint do they allege that defendants reproduced and distributed copies of their books,â US District Court Judge Araceli MartĂnez-OlguĂn wrote, cites The Verge, adding that "ârisk of future damage to intellectual propertyâ was too speculative.
THE VERDICT:
Much like the Social Media cases, the lawsuits against OpenAI and Microsoft could remake the AI industry. Should the New York Times win its case (and that may well happen), OpenAI may be forced to toss its models and rebuild. What's more, should that happen, individual content creators and large internet platforms alike (I'm looking at you, Reddit) have been scrambling to protect and paywall their IP from new large-language-model scrapping.
đ¸ MONOPOLY
"Do Not Pass Go" FTC Tells Kroger And Albertsons
In an era of inflation and consolidation, the proposed merger of supermarket giants Kroger and Albertsons has caught the FTC's eyeâand the eyes of nine states' attorneys general. A lawsuit was filed by the agency to stop the $24.6 billion deal, and calls into question the two companies' divestment plans to a third entity.
âKrogerâs acquisition of Albertsons would lead to additional grocery price hikes for everyday goods, further exacerbating the financial strain consumers across the country face today,â said Henry Liu, director of the FTCâs Bureau of Competition, in a statement. âEssential grocery store workers would also suffer under this deal, facing the threat of their wages dwindling, benefits diminishing, and their working conditions deteriorating.â
As GroceryDive notes, Kroger and Albertsons plan a "$1.9 billion definitive agreement with C&S Wholesale Grocers to sell 413 stores and eight distribution centers across 17 states and Washington, D.C" in order to ensure their merger is approved. Yet, the FTC says the planned divestiture is inadequate. âEven if C&S were to survive as an operator, Kroger and Albertsonsâs proposed divestitures still do not solve the multitude of competitive issues created by the proposed acquisition,â the agency stated. Adding, "C&S would face significant obstacles stitching together the various parts and pieces from Kroger and Albertsons into a functioning businessâlet alone a successful competitor against a combined Kroger and Albertsons."
The plan recalls Albertsons' merger with Safeway in 2015. As part of the deal, Albertsons would sell off 168 stores to regional chain Haggen. However, Haggen claimed Albertsons failed to agree to the terms set and the regional chained filed for bankruptcy. Albertsons was then able to swoop in and rebuy 33 of its own stores for pennies on the dollar.
Deal Defense
The Kroger-Albertsons deal is not the only mega-merger currently in the works, nor is it the only one that has caught the anti-monopoly eye of the FTC. Credit card giants Capital One and Discovery announced their proposed merger earlier this month to the tune of $35.3 billion. And while the may very well be blocked by the federal government, a large termination fee has been baked into the talks should things fall apart in other ways. A $1.38 billion termination fee would be activated if the board of directors on either side backs out of the deal. As Legal Dive notes, the $1.38 billion fee is in line with similar back-out penalties, though likely 'at the upper end' of the scale."
Verdict
While the FTC claims that a Kroger-Albertsons merge would create pure monopolies in large swaths of California and elsewhere, the supermarket chains argue that their real competition is Amazon, Costco, and Walmart. That may be an uphill battle given the antitrust streak the Biden Administration has been on.
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