The US Copyright Office takes a position!

On art made with AI tools, that is. Reuters story here, actual letter from the Office lawyer here.

I haven’t read the whole letter in detail yet (it’s long!) but I’ve looked it over and have Initial Thoughts:

• I don’t think there’s a fact-of-the-matter here, about what is copyrightable when. There are legal theories that make more and less sense, that are more and less consistent with other established theories, and so on. But these are not theories that try to model something in the real world, like the Theory of Relativity; they are more theories in the sense of Set Theory. So the Office can’t really be right or wrong here overall, but they can have made a more or less sensible decision.
• The overall finding of the memo is that Kristina Kashtanova still has a copyright on Zarya of the Dawn, but only on the text, and “the selection, coordination, and arrangement of the Work’s written and visual elements”, not on the visual elements themselves (i.e. the images made with Midjourney), because those images don’t involve “sufficient creative input or intervention from a human author.”
• This seems wrong to me; as other places in the document point out, the case law says that “only a modicum of creativity is necessary”, and there is certainly a modicum of creativity in prompt design and engine usage.
• The argument here seems to be, not that there isn’t enough creativity in the prompts and flags and so on, but that the connection between the artist’s input and the image output isn’t strong enough. The memo says things like ‘Rather than a tool that Ms. Kashtanova controlled and guided to reach her desired image, Midjourney generates images in an unpredictable way. Accordingly, Midjourney users are not the “authors” for copyright purposes of the images the technology generates.’
  • But where is the existing doctrine that says anything about predictability? Jackson Pollock might like a word, and the creator of any other roughly uncontrolled or algorithmic or found-object work. The theory here seems to be that Midjourney prompts are just suggestions or ideas, and those can’t be copyrighted. Does that mean that since Pollock just had the idea of splashing paint onto canvas, and the unpredictable physics of the paint cans and the air produced the actual work, that “Autumn Rhythm” can’t be copyrighted? Or are they going to hold that there is a legal significance to the fact that the detailed movements of his arm muscles were involved? That seems dicey.
  • For the Office to claim that the prompts and other input did contain at least a modicum of creativity (which seems undeniable) but that that input wasn’t strongly enough connected to the output, seems to be inventing a new legal test, which it’s not at all clear to me that the Office can do on its own hook, can it?
  • This memo may be specifically designed to be contested, so that the question can go to a court that can do that kind of thing.
• The memo may have interesting consequences for Thaler, in particular the cases in which Thaler attempted to claim copyright under work-for-hire theory, with his software as the creator. The memo explicitly makes the comparison with human work-for-hire, saying that if someone had given the same instructions to a human artist that are contained in a Midjourney prompt, and the human artist had made an image, then the person giving the instructions would not have been the creator unless work-for-hire applies (the human carrying out the instructions would have been the creator-in-fact), and that therefore they aren’t in the Midjourney case either.
  • To be consistent with both the memo and Thaler, the theory seems like it has to be that Midjourney is the creator-in-fact, and therefore the human isn’t (and can’t get a direct copyright as the creator), but also that software can’t be hired in the work-for-hire sense and therefore the human can’t get the copyright that way either. Which seems odd! It seems to acknowledge that the software is the creator-in-fact, but then deny both making the software the creator-in-law (because not human) and making the user the creator-in-law via work-for-hire (because I’m-not-sure).
• Some other countries are different and imho somewhat more sensible about this, as in the UK’s Copyright, Designs, and Patents Act, of which Section 178 explicitly talks about “computer-generated” works, meaning “that the work is generated by computer in circumstances such that there is no human author of the work”. That’s still imho a little sketchy (I continue to think that Kashtanova is in fact the human author of the images in Zarya), but at least it then provides that “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”
  • There’s still some room for doubt there, as for instance whether it’s Kashtanova or the Midjourney people or some combination who relevantly undertook the arrangements, but at least we aren’t in the position of saying that the author is a being that is not legally allowed to either be a creator, or confer creatorship to a human via work-for-hire.
• In the case of the many, many currently-registered copyrights on images made with AI tools (including mine), it seems that if the copyright office is notified, or notices, that fact, they are likely to cancel / withdraw the registration. The theory will be that the registration materials were incorrect when they named the creator as the author of the work, without in any way informing the Copyright Office that an AI tool was used. I could, for instance, send the Copyright Office a note saying “oh by the way I hear that you want to know when AI tools are used, and in my case Midjourney was”, and then they might cancel my registration on their (imho mistaken) theory that I’m not really the author.
  • Since I believe their theory is mistaken, I’m not currently planning to do that. :)
  • If they discover it on their own hook and send me a letter telling me they’re withdrawing the registration, I will do whatever easy thing one can do to contest that, but I’m not going to like hire a lawyer or anything; life’s too short.
  • I’m very curious to see what others do; I would expect that Midjourney itself (assuming it’s big enough to have lawyers) will have their lawyers working on a response to this memo.
  • My copyrights on the Klara trilogy and Ice Dreams (casually announced here) are secure, as to the text and the image selection and arrangement and all, just not to the images per se. Which is fine. And I haven’t registered those anyway. :)
• I should go back and add a note to all of my existing copyright weblog entries, pointing at this one; or, more sustainably, pointing at the entire “copyright” tag on the weblog here. Then I won’t have to keep updating it.
• I’m quite happy I decided not to worry too much about this whole thing, and just make pretty pictures (see pretty picture of concerned purple aliens above).

Updates: as this is a developing topic (as opposed to my usual topics which are Timeless Truths of the Universe), you may want to check the copyright tag on the weblog here for later updates, if this post is more than a week or month old.

County Jury Duty

Well, that’s over! For another six years (for state / country / town) or four years (for Federal). This is probably going to be chatty and relatively uninteresting.

Top tip: park in the parking lot under the library; it’s very convenient to the courthouse (although you still have to walk outside for a bit, and it was windy and rainy yesterday).

I had to report originally on Friday (the 13th!) because Monday was MLK day. On Friday 60-70 of us sat around in a big auditoriumish jury room for a while, with WiFi and allowed to use our cellphones and everything. Then they called attendance and talked about random things like the $40/day stipend if our employer doesn’t pay us or we’re self-employed (where did that tiny amount of money come from, one wonders) and where to park and so on. Then we were basically allowed to decide whether to come back on Tuesday or Wednesday (although I imagine if you were far down the perhaps-random list and most people had said one, you had to take the other).

I elected to come back on Wednesday for no particular reason. We were originally supposed to arrive on Wednesday at 9:30am, but over the weekend they called and said to arrive at 11am instead. Due to an inconvenient highway ramp closure and a detour through an area of many traffic lights, I got there at 11:10 or so and felt guilty, but hahaha it didn’t matter.

In the big Jury Room again, the 30+ of us waited around for a long time, then were led upstairs to wait around in the hallway outside the courtroom, and then after waiting some more were ushered into the courtroom to sit in the Audience section, and introduced to the judge and some officers, and then dismissed until 2pm for lunch (seriously!).

Some time after 2pm they let us back into the courtroom and talked to us for awhile about how it was a case involving this and that crime, and might take up to a month to try, and the judge is busy doing other things on Mondays and Thursday mornings so it would be only 3.5 days / week. Then they called 18 names, and those people moved from the Audience section to the Jury Box section. They started asking them the Judge Questions (where do you live, how long have you lived there, what do you do, what does your spouse and possible children do, do you have any family members who are criminal lawyers, etc, etc), and we got though a relatively small number of people and it was 4:30pm and time to go home.

I had a bit of a hard time sleeping, thinking about what the right answers to The Questions would be (how many times have I been on a jury in all those years? did we deliberate? do I know anyone in Law Enforcement? does the NSA count? should I slip in a reference to Jury Nullification to avoid being on the jury, or the opposite?) and like that.

Since the judge is busy on Thursday mornings, we appeared back at the courtroom at 2pm on Thursday, and waited around for quite awhile in the hallway, then went in and they got through questioning the rest of the 18 people in the Jury Box (after the judge asked the Judge Questions, the People and the Defense asked some questions also, although it was mostly discussions of how police officers sometimes but not always lie under oath, and how DNA evidence is sometimes right but not always, and how it’s important to be impartial and unbiased and so on, disguised as question asking).

Then they swore in like 6 of those 18 people, told the rest of the 18 that they were done with Jury Duty, and told the rest of us in the Audience section to come back at 9:30am on Friday (today!).

At 9:30 nothing happened for quite awhile in the hallway outside the auditorium, then for no obvious reason they started to call us into the courtroom one person at a time by name. There got to be fewer and fewer people, and then finally it was just me which was unusual and then they called my name and I went in. The Jury Box was now entirely full of people, so I sat in the Audience Section (the only person in the Audience Section!).

Then I sat there while the judge asked the same ol’ Judge Questions to every one of the dozen+ people (I know, I don’t have the numbers quite consistent) ahead of me, and then finally, as the last person to get them, I got them. And the Judge went through them pretty quickly, perhaps because he’d said earlier that he wanted to finish with this stage by lunchtime, and I had no chance to be indecisive about the issue of following his legal instructions exactly and only being a Trier of Fact, or anything else along those lines.

Then we had another couple of lectures disguised as questions, plus some questions, from The People and the The Defense. I’d mentioned the cat as someone who lived with me (got a laugh from that, but the Whole Truth, right?), and The People asked me the cat’s name and nature, and when I said it was Mia and she was hostile to everyone, The People thanked me for not bringing her with me (haha, lighten the mood, what?). And asked about my impartiality.

Now we’d had a bunch of people from extensive cop families say boldly that they couldn’t promise not to be biased against the defendant (and when The Defense I think it was asked if anyone would assume from The Defendant’s name on the indictment that He Must Have Done Something a couple people even raised their hands (whaaaaat)), and I perhaps as a result and perhaps foolishly said that while my sympathies would generally be with a defendant, I would be able to put that aside and be unbiased and fair and all.

So The People asked me if I could promise “100%” that I would not be affected by that sympathy, and I said quite reasonably that hardly any sentences with “100%” in them are true, and the judge cut in to say that he would be instructing the jurors to put stuff like that aside (implying that then I would surely be able to), and I said that I would (but just didn’t say “100%”) and then The People came back in saying that they need people who are “certain” they can be unbiased (so, no way), but then actually asked me if I was “confident” that I could be (a vastly lower bar) so I said yes I would.

And when all of that was over, they had us all go out to the hallway again, and wait for awhile, and then go back in to sit in the same seats. And then they had I think four of us stand up and be sworn in as jurors, and the rest of us could go out with the officer and sit in the big jury room again until they had our little papers ready to say that we’d served four days of Jury Duty.

And that was it!

My impression is that they were looking for (inter alia, I’m sure) people who either believe, or are willing to claim to believe, that they can with certainty be 100% unbiased in their findings as jurors. That is, people who are in this respect either mistaken, or willing to lie. And that’s weird; I guess otherwise there’s too much danger of appeals or lawsuits or something? (Only for Guilty verdicts, presumably, since Not Guilty verdicts are unexaminable?) The Judge did say several times that something (the State, maybe?) demands a Yes or No answer to his “could you be an unbiased Juror and do as you’re told?” question, and when people said “I’ll try” or “I think so” or “I’d do my best” or whatever, he insisted on a “Yes” or a “No”. (So good on the honesty for those cop-family people saying “No”, I suppose.)

So if my calculations are roughly correct, after ummm two or 2.5 days of Jury Selection, they’ve selected only about 10 jurors, and exhausted the Jan 13th jury draw; so since they need at least 12 jurors and 2 (and perhaps more like 6) alternates, they’re going to be at this for some time yet! (Hm, unless it’s not a felony case? In which case 10 might be enough? But it sounded like a felony case.)

Woot woot!

Kept the ol’ 2,000 words per day pretty constant during NaNoWriMo, except for a couple of days off that I made up for on the next weekend, so I made the goal of 50,000, and not by coincidence the end of the story, right there on the 25th (which was, let’s see, yeah, yesterday!). A nice feeling.

I think I like this year’s rather a lot. The little Midjourney pictures at the start of each Fling (where “Flings” really turned out to be Chapters) was fun, but I think not ultimately transformative; not a big deal. A few plot elements, some important, (the libraries, the plants, the fast sharp ships) came from the images, but without the images something else would I expect have sprung to mind and perhaps carried the same basic ideas, about meaning, and communication, identity and the symbol-grounding problem.

As a reminder; the whole thing can be read in order by clicking on the cover page here, and then clicking the bold link at the bottom of each Fling. I may be going through and fixing a few errors between now and the end of the month (although the relative inconvenience of doing that in WordPress may limit how much I do).

In other news, I’ve been on Twitter less, and on Mastodon / Fediverse more, prompted by the gross antics of the billionaire narcissist, but continuing just because it’s a more interesting place, with (so far?) more interesting and less upsetting communication going on. (It could be argued that given the State of Things, one ought to be upset; but so far I think the argument is flawed.)

I’ve been making tons and tons of images on Midjourney still (getting up near 20,000, the system tells me!) and they are still constantly improving the engine(s), which is very cool. I’ve been posting some of them on PixelFed (roughly, PixelFed is to Instagram as Mastodon is to Twitter), and also still on Twitter (the same ones, mostly). I have enough pictures that I love to fill many, many weblog posts, and I’m sure such posts will appear.

Here’s just one image for now that’s a total favorite; it’s called “Accord”:

Is that amazing, or what? He said modestly.

In the legal domain, there is talk of a class-action suit against Microsoft / GitHub / OpenAI / Copilot, on something like the claim that training an AI on a piece of code requires the appropriate license from the owner of that code (or equivalent, as for public domain code or code you wrote yourself). The possibility of implications for AI art tools like Midjourney, and AI text generators like NovelAI, is clear, although there may also be significant differences. For instance, there seem to be various examples of exact plagiarism by Copilot, whereas as far as I’m aware no such thing exists for say Midjourney or NovelAI.

(There was at least one person persistently spamming Twitter and Reddit with a copy-pasted claim that GPT-3 plagiarizes, pointing at various things on the web that did not actually show, or generally even claim, that. I can’t find them today; perhaps OpenAI’s lawyers sent them a letter. Similarly I’ve been told by one person on Twitter (and at least one other who agreed with them) that for “[a]lmost all pieces I’ve seen thus far, I can point at and name the elements that came from individual artists, and often individual paintings or works”, but when I expressed interest and asked for a concrete example, they said roughly “I’ll get back to you tonight” and then went silent.)

It will be interesting to see what happens with this lawsuit. Somewhat sadly, I think that:

• The most likely outcome is that they’ll just lose, because Microsoft is rich and individual Open Source contributors, even as a class, aren’t rich,
• Second most likely, Microsoft will give some symbolic amount of money to something that will benefit some Open Source contributors a little and some lawyers a lot, and there will be no precedent-setting court decision,
• Less likely, after some long wrangling process, something like the Private Copying Levy might be worked out, which is sort of like that last bullet, but more codified and involving more money, and possibly a precedent that there is a copyright violation at least potentially involved,
• Even less likely, there would be some kind of opt-out process whereby a creator could indicate they didn’t want their stuff used to train AIs, and makers of AI engines would have to like re-generate their neural nets annually without the opted-art works,
• And at the bottom, perhaps fairest in some sense but also least likely, a straightforward finding that AI Engine makers, at least ones that make money, really do need the right to copy and/or prepare derivative works of the things they train their engines on. So we’d get engines trained on just public domain works, things out of copyright, things posted under sufficiently permissive licenses, things they explicitly license, and so on. I would be fine with this, myself, but I wouldn’t bet on it happening.

We’ll see!

What else? That’s the main things I can think of. Oh, yeah, Thanksgiving was very nice; the four of us and the little daughter’s SO. We were (I was) especially lazy this year; beyond the HelloFresh pre-planned ingredients that we’ve used the last couple of years, this year we got the pre-planned pre-cooked just-needs-warming version from FreshDirect (ETOOMUCHFRESH). It wasn’t bad! And certainly easy. :) We also bought pre-made apple and pumpkin pies. I resist feeling guilty!!

Also my Windows laptop is broken (I’m not sure why or how; it behaves like a bad storage device, but both the HDD and the SSD seem perfectly readable when stuck into external USB things). Whatever’s wrong with it inside, it’s also vaguely falling apart, with cracked and broken keys, a non-functional direct Ethernet connection (on all connectors somehow), and some other stuff.

So I have an exciting new Framework laptop coming as an early Solstice present! (It’s supposedly in Alaska right now, on the way here in under a week or so.) Inspired, like so many other people, by Cory Doctorow’s glowing review. We’ll see if I am frustrated by the Intel graphics chipset. I’m pretty optimistic, as what I want to run isn’t like the latest AAA game; more like WoW and SecondLife and the GIMP and No Man’s Sky and Satisfactory. I might have to turn the resolution down some at worst I expect.

(In the meantime I’ve been using my phone and this tiny cheap Samsung Chromebook and just not using any of those programs; turns out my life doesn’t depend on any of them! The thing I’m most eager to do is get the GIMP going to work on Part 3 of Klara; in theory I could enable Linux on the Chromebook here and run the GIMP in that, but I rather doubt its CPU is up to it. Just typing this into the WordPress editor is lagging significantly just because I’m also watching YouTube and have a few dozen Chrome tabs open including like Discord and Mastodon and…)

There! :) Thanks for coming, and enjoy.

Weirdness from the Copyright Office

A quickish update. I have said, and still believe, that things created using AI tools are just like anything else with respect to copyright. But recent events remind me that the Copyright Office is made up of people, and people are unpredictable, and US Copyright law is in many places a squashy mess made up of smaller squashy messes, so logic does not always apply.

Here is a currently-relevant set of data points:

• I have registered the copyright on an image I made using MidJourney. I didn’t mention that I used MidJourney (or Chrome, or Windows) on the application form, because there was no place to put that; the form didn’t ask. The application for registration was granted routinely, without any complication.
  • I imagine there are hundreds / thousands of similar registrations from other people.
• This person has registered the copyright on a work that they made using MidJourney (I think it was), and the work itself makes it clear that MidJourney was used. The application was afaik granted routinely, without any complication.
  • But now it appears that the copyright office has said “oh wait we didn’t notice that MidJourney thing, so we’re cancelling your registration”.
  • And the person is appealing, apparently with the help of MidJourney themselves. (Hm, they’ve also apparently deleted some of their tweets on the subject; lawyer’s advice perhaps.)
• This person has applied apparently to register various images made with various workflows involving AI (dalle2 I think) to various extents, clearly stated, and rather than being just accepted or just rejected they’ve received emails from the copyright office asking them for details of what they did, and especially bizarrely suggesting that perhaps at least one of the works might have been “conceived” by the AI.
  • Which seems crazy, because the Copyright Office has generally had the opinion that software isn’t creative, and can’t (like) conceive things.

I suspect that things are just rather in disarray at the Copyright Office, and different examiners are doing different things, perhaps having gotten different memos on the subject, or just having their own different opinions about things. It will be interesting to see how the appeal mentioned above goes!

To me, it seems obvious that things created with AI tools should be prima facie registerable with the copyright office, just like photographs presumably are, and if someone wants to challenge based on some legal theory about either lack of creativity or derivative works or whatever, they can do that. The copyright office itself, I would think, would want to stay far away from any situation where they have to somehow evaluate themselves how many units of creativity are in each of the kazillions of applications they get daily.

On the other hand, the Copyright Office could simply issue some sort of guidance saying “We won’t register copyrights on works created with the significant use of an AI tool like dalle or MidJourney, so don’t bother asking” (and could even update the forms to have a question about it).

I think that would be dumb, and lead to court cases eventually that would either overturn that or at least cause a great deal of faffing about that they could have avoided.

But then people and government offices do dumb stuff all the time, so who knows! All is in flux…

And here is an image that I made using Midjourney. No matter what the Copyright Office thinks today. :)

Updates: Things have developed legally and otherwise since this was posted; I recommend the copyright tag on the weblog here for currency.

Yes, works made with an AI can be copyrighted.

In fact in most cases works made with an AI, just like works made with a typewriter or a paintbrush or Photoshop, are copyrighted by the human who created them, the moment that they are “fixed” (to use the wording of the Berne convention). I’m writing this page mostly to address the many statements to the contrary that are all over the web, and that people keep posting on the MidJourney Discord and so on, so that I can like link to this page whether than typing it in yet again every time someone says it.

But I read that a series of rulings found otherwise!

Yes, sadly, I’m sure you did. Here are just a few samples of this misinformation (one is especially disappointed in Smithsonian Magazine, ffs). But if one reads beyond the misleading headlines, these are all about two decisions by the U.S. Copyright Office in the case of Thaler, and (tl;dr) all those decisions do is reject the theory that an AI can create something as a “work for hire”, and the person using the AI thereby get the copyright to it as the “employer”. Since in US law only persons or “individuals”, not including software or computers, can be “creators in fact” of a creative work, they reject that theory.

The decisions in the Thaler case most definitely do not say that a person who uses an AI program in the ordinary way, just like a person who uses a paintbrush in the ordinary way, doesn’t come to own the copyright to that thing automatically, in the ordinary way (as nicely explained here). And in various other countries, the copyright laws explicitly account for things generated by or with an AI, and acknowledge that copyright applies to them (see for instance this short survey).

(If you’re here just because someone posted you this link when you said that images made using AI can’t be copyrighted, that’s all you need to know, but feel free to read on etc!)

But when a person uses an AI, all the creativity is in the AI, so the person shouldn’t get a copyright!

No court case that I know of, in any country, has ever ruled this way. One might as well argue (and people did, when the technology was new) that there is no creativity in a photograph, since all you do is point the camera and push a button. And yet it’s (now) uncontroversial that people get copyright in the photographs that they take.

It’s easy to take a picture, but a good photographer picks a camera and lenses, decides where to point it and in what light to press the button, and then decides which images to keep. It’s easy to use an AI to make a picture, but a good user of an AI image tool picks an engine and settings, decides what prompt(s) to give it and with what switches to invoke it, and then decides which images to keep. I think those are very analogous; you may disagree. The courts have not yet weighed in as of this writing, but it seems to me that denying copyright because a particular kind of software was involved in a certain way would be a mess that courts would not want to wade into.

If there hasn’t been a positive ruling in the US, though, it could turn out…

I agree, since the law doesn’t explicitly say that a person using an AI to make an image has the copyright in the image, and because the “all the creativity is in the AI” argument does exist, it’s not impossible that some US court could find that way. So one might not want to risk anything really important on that not happening.

What’s up with Thaler, anyway?

Thaler is, well, an interesting character, it seems. He believes that some AI programs he has created have had “near death experiences”, and he has attempted to obtain patents with an AI program as the inventor, as well as the attempts to cast them as work-for-hire employees for copyright purposes, as mentioned above. An individual before his time, perhaps. Perhaps.

Update: What if the ToS of a service says…

As a couple of people asked / pointed out after I posted this, sometimes the Terms of Service on a site where you can create stuff, says or implies that you do not own the copyright to the stuff, but they do, and they grant you some sort of license.

The MidJourney ToS, in fact, currently says that “you own all Assets you create with the Services” with a few exceptions including ‘If you are not a Paid Member, Midjourney grants you a license to the Assets under the Creative Commons Noncommercial 4.0 Attribution International License (the “Asset License”).’ This is a bit terse and ambiguous, but the obvious interpretation is that in that case MidJourney owns the Assets, and grants the user a certain CC license.

As far as I know, it isn’t well-established in IP law whether a ToS can unilaterally change who owns what like this; if anyone knows more, I’d be interested! But in any case, this sort of thing still says or implies that someone owns the rights, so it doesn’t directly impact the overall subject here.

Update 2: Show me an actual AI artwork that is registered with the US Copyright office!

Funny you should ask! :)

Update Infinity: Lots more stuff has been happening since this was originally posted!

See the Copyright tag on the weblog here.

This is boring, post a picture!

A strange surreal owl-thing or something

Is it plagiarism? Is it copyright infringement?

So I’ve been producing so many images in Midjourney. I’ve been posting the best ones (or at least the ones I decide to post) in the Twitters; you can see basically all of them there (apologies if that link’s annoying to use for non-Twitterers). And an amazing friend has volunteered to curate a display of some of them in the virtual worlds (woot!), which is inexpressibly awesome.

Lots of people use “in the style of” or even “by” with an artist’s name in their Midjourney prompts. I’ve done it occasionally, mostly with Moebius because his style is so cool and recognizable. It did imho an amazing job with this “Big Sale at the Mall, by Moebius”:

“Big Sale at the Mall, by Moebius” by Midjourney

It captures the coloration and flatness characteristic of the artist, and also the feeling of isolation in huge impersonal spaces that his stuff often features. Luck? Coolness?

While this doesn’t particularly bother me for artists who are no longer living (although perhaps it should), it seems questionable for artists who are still living and producing, and perhaps whose works have been used without their permission and without compensation in training the AI. There was this interesting exchange on Twitter, for instance:

1/ Hello @midjourney how goes?

Quick question, is there a way one can specifically ask for their name to be in a “do not EVER allow to be used in a prompt” list? Seeing folks on your discord not only use my name, but trying to figure out how to train your ai to mimic my work-

— Karla Ortiz (@kortizart) August 1, 2022

The Midjourney folks replied (as you can I hope see in the thread) that they didn’t think any of this particular artist’s works were in the training set, and that experimentally adding their name to a prompt didn’t seem to do anything to speak of; but what if it had? Does an artist have the right to say that their works which have been publicly posted, but are still under copyright of one kind or another, cannot be used to train AIs? Does this differ between jurisdictions? Where they do have such a right, do they have any means of monitoring or enforcing it?

Here’s another thread, about a new image-generating AI (it’s called “Stable Diffusion” or “Stability AI”, and you can look it up yourself; it’s in closed beta apparently and the cherrypicked images sure do look amazing!) which seems to offer an explicit list of artists, many still living and working, that it can forge, um, I mean, create in the style of:

Here is a collection of relatively modern or currently working artists that they advertise as styles to steal on their site(there are hundreds of others). This is just gross. pic.twitter.com/LLcl7dR9IN

— RJ Palmer (@arvalis) August 14, 2022

So what’s the law?

That’s a good question! I posted a few guesses on that thread (apologies again if Twitter links are annoying). In particular (as a bulleted list for some reason):

• One could argue that every work produced by an AI like this, is a derivative work of every copyrighted image that it was trained on.
• An obvious counterargument would be that we don’t say that every work produced by a human artist is a derivative work of every image they’ve studied.
• A human artist of course has many other inputs (life experience),
• But arguably so does the AI, if only in the form of the not-currently-copyrighted works that it was also trained on (as well as the word associations and so on in the text part of the AI, perhaps).
• One could argue that training a neural network on a corpus that includes a given work constitutes making a copy of that work; I can imagine a horrible tangle of technically wince-inducing arguments that reflect the “loading a web page on your computer constitutes making a copy!” arguments from the early days of the web. Could get messy!
• Perhaps relatedly, the courts have found that people possess creativity / “authorship” that AIs don’t, in at least one imho badly-brought case on the subject: here. (I say “badly-brought” just because my impression is that the case was phrased as “this work is entirely computer generated and I want to copyright it as such”, rather than just “here is a work that I, a human, made with the help of a computer, and I want to assert / register my copyright”, which really wouldn’t even have required a lawsuit imho; but there may be more going on here than that.)
• The simplest thing for a court to decide would be that an AI-produced work should be evaluated for violating copyright (as a derivative work) in the same way a human-produced work is: an expert looks at it, and decides whether it’s just too obviously close a knock-off.
• A similar finding would be that an AI-produced work is judged that way, but under the assumption that AI-produced work cannot be “transformative” in the sense of adding or changing meaning or insights or expression or like that, because computers aren’t creative enough to do that. So it would be the same standard, but with one of the usual arguments for transformativity ruled out in advance for AI-produced works. I can easily see the courts finding that way, as it lets them use an existing (if still somewhat vague) standard, but without granting that computer programs can have creativity.
• Would there be something illegal about a product whose sole or primary or a major purpose was to produce copyright-infringing derivative works? The DMCA might possibly have something to say about that, but as it’s mostly about bypassing protections (and there really aren’t any involved here), it’s more likely that rules for I dunno photocopiers or something would apply.

So whew! Having read some of the posts by working artists and illustrators bothered that their and their colleagues’ works are being used for profit in a way that might actively harm them (and having defended that side of the argument against one rather rude and rabid “it’s stupid to be concerned” person on the Twitter), I’m now feeling some more concrete qualms about the specific ability of these things to mimic current artists (and maybe non-current artists whose estates are still active).

It should be very interesting to watch the legal landscape develop in this area, especially given how glacially slowly it moves compared to the technology. I hope the result doesn’t let Big AI run entirely roughshod over the rights of individual creators; that would be bad for everyone.

But I’m still rather addicted to using the technology to make strange surreal stuff all over th’ place. :)

Flash-loan attacks, also LegalEagle on crypto

If you type “flash” into the search box on good ol’ Web3 Is Going Just Great, it’s very likely that you’ll get a lot of hits; at the moment there are nearly a dozen just in the last two months.

I haven’t studied these all in detail, but I think I can outline a representative flash-loan attack in enough detail and generality to be instructive and/or amusing.

Consider this small recipe, embodied as a piece of code:

1. For a small fee, borrow a jillion FooCoins for a very small period of time, like the time that this program will take to run.
2. Use those FooCoins to purchase 51% of the FooAdmin coins that determine who gets to vote on actions of the FooDAO (Distributed Autonomous Organization).
3. Having control of the FooDAO, transfer all of the five-jillion FooCoins owned by the DAO to yourself.
4. Sell the FooAdmin coins purchased in (2), for some amount of FooCoins, probably less than a jillion, maybe zero, I’m not clear on this part, see below.
5. Pay back the jillion FooCoins borrowed in (1).
6. Make off with a net profit of four-jillion FooCoins, minus the small fee in (1), plus the possible proceeds from selling the empty husk in (4).

One interesting fact about this is that every step appears to be using some feature of the overall system exactly as it was intended to be used: there are no stolen passwords, no impersonation, no stack overflows. Prosecutions or lawsuits seem relatively unlikely; it would be interesting to see how one goes!

Another interesting fact about this is that it’s basically the way that Mitt Romney and other “Vulture Capitalists” got rich: find a company whose assets are worth more than it would take to buy the company, get a loan, buy the company, sell off the assets, pay off the loan, and profit, leaving an empty husk of a company behind.

Only it’s much, much faster.

People have talked about various ways to keep these things from working:

Flash loans seem bizarre; I don’t know what non-nefarious uses they have. On the other hand, since they are really just programs, it’s unclear how (especially in the Free and Decentralized Web3 World) one would prevent people from creating them, in order to profit by supplying services to even nefarious uses.

It’s also not clear to me that the DAO administrative coins should just be sitting around for sale to anyone with enough money; given what they do, perhaps one would like actual human judgment involved. On the other hand, that also goes against the basic Code Is Law And Everything Is For Sale principles of Web3.

Perhaps, even if flash loans have to be allowed and buying DAO administrative coins has to be allowed, maybe they shouldn’t be allowed to intersect. In the traditional market, you aren’t supposed to buy big things like cars and houses (and down-payments on loans) using borrowed money, to prevent this sort of privilege-amplification via cash. That seems like it would be hard to enforce without significant additions to the relevant protocols; like, a FooCoin would have to remember that it’s borrowed and will need to be paid back, and who wants to clutter up the free simple Web3 world with stuff like that?

Perhaps someone should have to have owned a DAO administrative coin for more than a millisecond before they can vote the share that it represents. A few days maybe even. I think this is being seriously considered by some DAOists. (Haha “DAOists”; have you read “The Confessions of a Taoist on Wall Street”? Good book, long predating cryptocurrencies.)

Perhaps in general FooDAO shouldn’t own more FooCoins than the value of 51% of the FooAdmin coins that exist. But, as with the traditional companies, it’s not all that unusual for a company to own more assets than the company (or just a controlling interest in it) would cost, it just means that they’ve been accumulating stuff to use to make money by doing whatever the company is in business to do, but haven’t made that money yet. And in the area of DAOs, it’s not clear to me whether it’s perhaps possible to get enough by reselling the husk in step (4) that this isn’t actually necessary anyway. Also there are “liquidity pools” that I should read about sometime.

This here above is a specific type of flash loan attack; the most impressive and amusing kind that I know of. More generally, there are various kinds of flash loans where someone pays a small fee to acquire a jillion FooCoins, uses those FooCoins to play fun lucrative tricks in the market (all the more feasible where liquidity is low, things are generally unstable, unregulated, etc), and then pays back the loan with a fraction of the resulting booty.

So that’s that Fun Idea o’ the Day! :)

Relatedly, the very interesting Legal Eagle YouTube channel / person / lawyer recently had a (what do you call them?) thing called “NFTs are legally problematic“, all about how NFTs are legally problematic, for reasons including the contract and copyright things that we wondered about back in previous posts here in the weblog, and benefiting from actual real legal concepts like “privity of contract”, which says that a contract can’t confer rights or impose obligations on anyone who hasn’t signed it (and which leads us to wonder for instance how someone who uses Opensea to buy some NFT that I’ve put up for sale, can acquire any rights in that, since I’ve never heard of them, let alone signed a contract with them; I dunno).

Anyone interested in the vaguely-legal NFT stuff that I’ve talked about here will probably be interested in that Legal Eagle video. There’s another one, also by Legal Eagle, about the usefulness (or otherwise) of NFTs for creators, and it’s over on Nebula and/or CuriosityStream; here is a link that probably requires some kind of membership in something.

I don’t entirely understand Nebula and/or CuriosityStream (including, clearly, being able to tell them apart), but there seem to be various interesting videos (that’s the word: videos!) on it/them, and various people that I like to listen to (including Legal Eagle and Jordan Herrod I think it is) talk about it/them and seem to be somehow involved, so that’s cool.

I wanted to write about something else, what was it? Oh, right, the objectivity or otherwise of God-based moral systems. That sounds like a different post :) so maybe later.

AkuDreams: Code Still Not Law

This is adapted from a twitter thread. Like the thread, I’ll start off talking based mostly on a simplification of what actually happened, and at least point to the somewhat more complicated but more accurate account lower down. I’m virtually sure that I have some of the technical bug details wrong here, so don’t take this as gospel, but the overall lesson is clear.

Hah, I love this SO MUCH. Because I am a terrible person only slightly bothered by the people who are actually suffering as a result.

$34 million, or 11,539 eth, is permanently locked into the AkuDreams contract forever. It cannot be retrieved by individual users or by the dev team.

The refund processing, which is complete, sets each bid status to 1. pic.twitter.com/6GnQPnddC6

— foobar (@0xfoobar) April 23, 2022

This is an auction run by code on the Ethereum blockchain. You make a bid by sending the “contract” some money (in the form of ETH cryptocurrency; every Ethereum “contract” basically has a built-in escrow agent), and if you send more than the ultimate price (it’s a “modified Dutch auction”), it’s supposed to refund that money. But!

Due to a little bitty bug (and a relatively typical one; thousands of bugs like this one are written every day), the program (roughly) thinks that it’s already done that, and doesn’t do it “again”. And all the overrides in the code aren’t low-enough level to slip past that check.

Also (due to another bug, where it falsely assumes that every “minting” transaction “mints” exactly one token-thing, but in fact some minted multiple) the program can never reach a state in which it will allow the owners of the thing(s) being auctioned to withdraw the funds; those ETH will stay in escrow forever.

Yet another example of why “Code is Law” is silly and false.

I can think of three basic things that could be done about this:

First, they could tell the victims “too bad, code is law, that’s what you get for sending money to a contract that might have bugs”. That’s imho unlikely; the publicity would be terrible, which is to say, accurate.

Second, they could fork the Ethereum blockchain, and get 51% of the system to agree to swap in an altered chain reflecting what the program should have done. Forks are also terrible publicity; I think this is unlikely too.

The main reason I think a fork is unlikely is that, third, some number of unjustly wealthy crypto-whales can just step in and make up the lost funds out of their own pockets. This will superficially make it look like “the system works”, and the donors will get clout. I kind of suspect that this is what will happen (although if in fact only the owners, and not the bidders, have lost money, see below, the first option might be more likely, in that “it’s your fault for having deployed buggy code” doesn’t sound all that bad maybe.)

I was actually dreaming about all this this morning, between waking up briefly and checking Twitter for amusing things since I was awake anyway, and actually waking up an hour or two later. (And now I have a headache :P.)

It was a fun dream, reminiscent of the early anti-virus days before it all got boring, sitting around in a War Room with various Important People on the phone, trying to decide the best mitigation for a weird code thing.

Mostly I thought / dreamed about how to fix it with a fork-but-not-really. A brute-force fork (“install this new Blockchain!”) would be boring, but what if we hacked the Ethereum bytecode interpreter? The bytecodes may be all fancily embedded in the blockchain, but their meaning isn’t!

We (note I’m saying “we” here because now I’m talking about something cool) could just (“just”) add code to the interpreter saying “if between time0 and time1 you’re interpreting these bytecodes [buggy program], then pretend that they say [fixed copy of program]”. Sweet, eh? 😁

Then you get enough nodes to install the new EVM sometime before time0, and Bob is your Uncle.

Would enough nodes object, and refuse to run the hacked code, that there would be a fork-in-practice? Good question, and I have no idea. I’m just doing this for the mental exercise. :)

Here’s a history of the most famous (unplanned) Ethereum fork. That one was due to an active attack on a bug to steal stuff, not a bug simpliciter, and differed in other interesting ways. The amount of money at stake, though, was arguably comparable.

Here’s the more detailed analysis alluded to above, which says that the bidders’ money getting stuck was due to someone intentionally exploiting that bug (by, I think, having a “contract” send a bid, and then refusing the attempt to send it a refund, or something), and they turned the exploit off (by signaling the contract to accept the refund now), after which (some? all?) refunds went through, but then due to the other bug all by itself with no exploitation, the owners are unable to withdraw the rest of the funds forever.

And here’s Web 3 is Going Great on the situation for completeness. :)

I’m fascinated by the details of the bugs that led to this, but in fact they don’t really matter; the moral is that code will have bugs, bugs will cause things to happen that no one wanted and/or that violated someone’s rights in some way, and that therefore code is not law, and must never be law.

(Speaking of which, I had a long and… somewhat memorable Twitter discussion (apologies about how hard it will be to read that anything like linearly) about this with one Vinay Gupta, who is apparently something of a Force in this space, having 37.5K Twitter followers. Among other things, he calls me all sorts of names, and declares that he himself is “a different kind/calibre of smart. Possibly a once in a generation transformational intelligence.” So that happened. :D

But if I start weblogifying all of my Twitter exploits, you’ll get bored. Heck, I’ll get bored! So I won’t.)

And that’s the end of Today’s Episode of Code Is Definitely Not Law So There. Not a podcast.

Smart Contracts are Neither

Not smart: the things called “Smart Contracts” fail to be smart in the same way that many similarly-named things fail to be smart. Marketing entities use “Smart” to mean, not “intelligent”, but just “has a computer in it, and does some things that might be good, and that it might not be able to do without a computer.”

So a Smart Phone is a phone that, as well as making and receiving calls and texts, also lets you get notifications of things that you don’t care about, and waste your time in pointless apps. As well as, of course, lots of good and useful things, none particularly involving intelligence. And a Smart Toaster, Smart Washer, Smart Watch, and so on are different from the usual versions primarily in that there are more ways for them to go wrong. They are “Smart”, but not smart.

The things called “Smart Contracts” are, similarly, not intelligent, but rather contain a computer (or in this case, since they are abstract entities, a computer program), and can go wrong in all sorts of new and complicated ways.

One could also say that they are “not smart” in the sense that they are not a good idea, the way that for instance joining an MLM is not smart. This would also, in general, be correct.

Not contracts: In law, a contract is a legally-binding agreement between two parties, or (more loosely) a record that demonstrates that such an agreement exists. There are various laws and treaties governing the nature of contracts, and lots and lots of case law (i.e. legal decisions, findings and what-have-you) spelling out how those laws should be interpreted in various situations.

The things called “Smart Contracts” are not contracts in this way. They are not even the kinds of things that can be contracts. They are little computer programs (much too little to be “intelligent” even in the sense that we call some computer programs “intelligent”), sometimes written in the Solidity language for instance, sometimes stored within or adjacent to an Ethereum blockchain, which get run by the corresponding platform under certain circumstances, and which can cause various operations related to the blockchain and its associated artifacts to occur.

For instance, and speaking of NFTs, a “Smart Contract” might be a program that says (once translated more or less into human language):

If a party X sends 100 dogecoins to account 12345, and account 12345 still belongs to the party associated with NFT 27FA9/JQ, then change the association of NFT 27FA9/JQ to party X, and send 15 dogecoins from account 12345 to account 87655.

where 87655 is the account of someone who for whatever reason gets 15% of the sales of some set of NFTs.

Now this is clearly not a contract. The fact that 87655 gets 15% from the NFT-sale that this program implements might or might not be a consequence of some actual contract, some agreement between two people, but it is not that contract or agreement itself. Similarly, the fact that the ownership of the NFT changes to X when X sends 100 dogecoins to some address might or might not reflect or implement some real-world contract between two people, but it is not itself that contract or agreement.

As I pointed out last time, in deciding whether or not a legally-enforceable contract exists, a court will be far less interested in what some bits inside some computer did, than they will be in what agreement some humans actually formed, what information they had, what their intent was in taking certain actions, and what they knew or had reason to know in various circumstances. None of which the “Smart Contract” tells us anything about.

Code is not law: We have recently seen some (well) amusing “Smart Contracts”, which said things like:

Withdraw from this account five times as much as the account contains, and deposit it into account XYZ.

expressed in a complex-enough way that the platform on which it was running said “Sure, okay!” and gave XYZ five times as much as the owners of the platform would have preferred. The suggestion that this was fine and dandy, since it was just the code doing what the code does, and code is law, and a contract is a contract, was not, as far as I’m aware, generally entertained, or even proposed, in this case; it was regarded as naughty at best. (Variants of this have happened several times now; this was the first one I noticed.)

Another example:

Conduct a community poll called “Do sensible things in case a scam is discovered”; if this poll gets positive votes from at least half the community, transfer digital assets worth sixty-four million US dollars from the community, to the creator of this poll.

As far as I’m aware, someone looked hard enough at the code in the poll to realize it was probably a bad idea, and got word out in time to prevent it from getting enough votes to do its thing, but since the poll / “contract” exists on the blockchain, it will in some sense Always Be There.

There are lots of examples of these, from “Smart Contracts” that create fungible assets that can be bought only from the creator and never sold (thus creating, erhm, a significant upward pressure on price until people realize what’s going on), to “Smart Contracts” that take money from anyone trying to delete a random weird thing that shows up in their inbox and pressing Okay on your typical “Allow this to forfle the mongio?” popup, to pretty much anything else you can imagine.

Not to mention more traditional attacks involving stolen private keys, trojan horses in “apps”, NFTs pointing at digital goods to which the NFT creator has no rights, and investment schemes that suddenly vanish with all of the invested funds, of which there are too many to even bother linking to; web3 is going just great is a lovely source for all of this stuff.

And my point in mentioning all of these (as well as supporting the idea that “Smart Contracts” might be not-smart in the “not a good idea” sense above) is that if the writer of any of these programs was caught and taken to court, it’s imho very unlikely that the court would find that they get to keep the money, because a contract exists in which the victims agreed to pay it to the beneficiary.

And that’s, again, because these things called “Smart Contracts” are not contracts. They are just little computer programs. And Code is Not Law.

More on NFTs and Copyright

Just the other day, we talked about what’s actually inside an NFT, and what you get when you “buy” one.

One of the things I wondered was whether there are any NFTs that, when you buy them, you actually get full control and ownership of the digital content associated with it; as in an actual transfer of copyright.

This turns out to be a variously interesting question! In the US, we have Title 17, chapter 2, paragraph (or whatever) 204.a which reads:

A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.

US Copyright Law

Here in the Age of Digital Everythings, it is naturally unclear just what “in writing and signed” means. Does email count as “in writing”? Does some sort of random “e-signature” thing count as “signed”? Does someone having clicked “Okay” on a box saying “Do you hereby sign this?” count?

Can copyright be transferred online?

There appears to be a limited amount of case law on this subject. You got your Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc., Appeal No. 12-2102 (4th Cir. July 17, 2013), which considered inter alia

whether a subscriber, who “clicks yes” in response to MRIS’s electronic TOU prior to uploading copyrighted photographs, has signed a written transfer of the exclusive rights of copyright ownership in those photographs consistent with Section 204(a).

and noted that

Although the Copyright Act itself does not contain a definition of a writing or a signature, much less address our specific inquiry, Congress has provided clear guidance on this point elsewhere, in the E-Sign Act.

Basically the E-Sign Act says of various legal transactions that “a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation”, and qualifies that with some definitions and exceptions and stuff.

The Met. Reg’l. Inf. Sys. decision further references yer Vergara Hermosilla v. Coca-Cola Co., 2011 WL 744098, (S.D. Fla. Feb. 23, 2011), which rather casually and in passing “reasoned that allowing the transfer of copyright ownership via e-mail pursuant to the E-Sign Act accorded with, rather than conflicted with” the purpose of Section 204 up there, and was therefore okay.

Given this rather sparse case law, it seems like simply being online / electronic / digital doesn’t prevent a transaction causing a transfer of copyright. The further question, then, is whether the specific online action of buying (selling) an NFT, can do that.

Can the transfer of an NFT transfer copyright?

I will boldly state here that the answer is No. The simple fact that an API request came into some server (however well digitally signed and authenticated it was) that caused a block to be posted to some blockchain (however decentrally and securely) that led to some Solidity code being executed that in turn caused a different ID to be associated with a particular NFT, is not sufficient by itself to transfer any copyright ownership from one person (or other entity) to another.

Why not? Because what a court looks at to determine whether a copyright transfer (or other things, like assent to license terms) actually occurred isn’t anything about what happened with some bits inside a computer; rather, it’s the actual intent of some human somewhere when they took some action.

In the moderately famous Specht v. Netscape Communications Corp. – 306 F.3d 17 (2d Cir. 2002), for instance, the court was asked to decide if someone pushing the “download” button on a web page was bound by certain license terms, when those license terms were visible only if the user scrolled further down the page and clicked on a link leading to a copy of the license agreement. The license agreement started (sorry for the shouting):

BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING NETSCAPE COMMUNICATOR, NETSCAPE NAVIGATOR, OR NETSCAPE SMARTDOWNLOAD SOFTWARE (THE “PRODUCT”), THE INDIVIDUAL OR ENTITY LICENSING THE PRODUCT (“LICENSEE”) IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT.

In the analysis of this case, the court noted various prior decisions, holding that various “shinkwrap” and “click-wrap” and “browse-wrap” licenses (love the terms) either were or weren’t valid in various circumstances.

The basic finding in Specht here is that

The case law on software licensing has not eroded the importance of assent in contract formation. Mutual assent is the bedrock of any agreement to which the law will give force.

And I would claim that the fact that a particular request came into a particular server, can never in itself prove any human’s assent to anything.

(I can imagine some argument that, because the request was signed with some human’s private key, and because that human had reason to know that they should be very careful that no other person and no piece of software ever has access to that key without their consent, that by allowing the human and/or programmatic sender of the request access to their key, they implicitly assented to anything that that key was used for. But I hope and trust that auch an argument would fail, because it’s silly.)

It depends on the User Experience

On the other hand, given what we found earlier in this post, it seems very likely that a human action that results in the programmatic transfer of an NFT, can also result in the legal transfer of copyright ownership. The human action just has to be in writing and signed (within the still-somewhat-squishy meaning of the E-Sign Act), and has to be an action that actually indicates intent and assent to that copyright transfer.

So for instance (and like everything else in this post, I am not a lawyer and this is not legal advice and you can never sue me for anything and if you do I automatically win), say that when I went to buy an NFT I got a popup saying “Do you realize that by buying this NFT you will become the copyright owner of Thing X?” and it wouldn’t go through until I pressed Yes, and also the copyright owner would get a popup saying “Ceoln wants to buy your NFT for $D and do you want to allow this, realizing that if you do you will be transferring total ownership of Thing X to them?” and it also wouldn’t go through until they pressed Yes.

In this case, I would imagine that a court would be likely, if asked, to find that copyright transfer had actually occurred if we both pressed Yes and there was nothing weird going on.

Note that this has nothing whatever to do with there being an NFT involved; that system would successfully effectuate a copyright transfer if the owner of the copyright on Thing X was recorded in a MySQL database somewhere, or even not formally recorded at all. (Although in the latter case it would be harder to prove it had happened if one party denied it.)

A more convenient and less clear case would be if the person owning the copyright clicked Okay on a popup when the NFT was minted, saying “By clicking Okay, you agree to transfer complete ownership of the copyright on Thing X to whoever buys this NFT from you in the future”, and then when someone bought it they got a popup as above, and then the NFT changed hands without any further action by the copyright owner. Is a contract like that valid and enforceable? Can you make a contract with someone unknown and unspecified, such that it takes effect without any further action by you in the future when the other party becomes known? I don’t know! One interpretation would be that the creator is actually entering into a contract with the NFT marketplace operator, agreeing that in the future they will assign copyright; but could that actually make the assignment happen automatically in the future?

Further reading

There are a few documents here and there about copyright and electronic transfer and NFTs, most of them brief, acknowledging that everything is untested, and citing various possibly-relevant cases. There are various issues that we haven’t considered here (for instance “what happens when someone mints an NFT pointing at some text or image that they don’t own the copyright on themselves?”).

Copyright transfers by email and website terms of use
You can transfer a copyright without saying ‘copyright’
What are the copyright implications of NFTs?
No, NFTs aren’t copyrights
The Rise of Non-Fungible Tokens (NFTs) and the Role of Copyright Law – Part I Part II

Or, really, you could just do a web search on “NFTs and Copyright”.

When you “buy” an “NFT”, what do you have?

NFTs, “Non-Fungible Tokens“, are a Thing. Many people are very enthusiastic about this thing. Others, not so much (I recommend pretty much everything Diehl has written in and around this subject).

Everyone knows that you can “buy” and “sell” them, and that it’s been breathlessly announced that huge amounts of money has changed hands due to people doing that (even if some of it has been just people buying from themselves to pump up prices, hem hem).

But as far as I can tell, very few people know what they actually are aside from that, and the information can be both hard to find, and significantly variable between NFTs.

Some background

They’re called non-fungible to contrast with fungible things that also live on blockchains, the most obvious being units of bitcoin and other cryptocurrencies. These are fungible, in that any bitcoin is identical to any other bitcoin, and what they are is relatively simple: they are a number that gets associated with a public / private keypair, and if you know the private half of the keypair, you can move the numbers around, transfer some of them to someone else who agrees to give you US dollars or movie tickets or illegal drugs in exchange, and so on.

(This is not 100% accurate, because in some/many situations, someone else actually knows the private keys involved, and you delegate the usage of it to them, because you trust them and you don’t want to have to fiddle around with keypairs and crypto yourself, because you’d do it wrong. But it’s the general idea. The same caveat applies to the descriptions below concerning NFTs.)

NFTs are non-fungible, in that every NFT is different in some sense from every other one. If a particular NFT is currently associated with a certain public / private keypair, that NFT is associated with only that keypair, and only the holder of the private key can transfer the association to someone else (i.e. some other keypair), again with complications that we may or may not consider below.

So far, so good. I can pay someone some money (in the form of, say, US dollars, bitcoins, etc.) and in exchange they will transfer the association of a particular NFT from their keypair to mine. Which is to say, roughly, that they will give ownership of the NFT to me.

Aside from this association, what other properties does an NFT have? Why would I want to pay money to associate one with me (with a keypair whose private key I know)?

Inside an NFT

It turns out that this depends on the exact NFT, which NFT-supporting system it’s on, which fields the creator of the NFT filled in, and some other things. But in general, the only other property that an NFT has, is that it’s associated with some string of letters and numbers. That string of letters and numbers can be just about anything, from an address on a blockchain (for digital goods that are tiny enough that storing them entirely on the blockchain isn’t too expensive) to a URL or other URI (i.e. that a thing like a web-browser might be able to use to find some digital data) to a description of some real-world item like “the property situated to the north of McLellan Road, designated as Parcel Number 47A on the Flint County Assessor’s Map of June 15th, 1987”.

So an NFT is an association between a public/private keypair, and an alphanumeric string. In common speech, if that alphanumeric string is the URI of a funny picture of a kitten, and I know the private key of the keypair (with caveats as above) I am said to “own” the picture (or “the NFT of the picture”, although the distinction is seldom observed).

Ownership is, in general, a legal concept, and transfer of ownership is generally done via a contract, either implicit or explicit. Does me knowing the private key of a keypair associated via NFT to a URI pointing at a funny picture of a kitten, actually give me any legal rights vis-à-vis that picture?

I wondered about that, and poked into it a little, originally in this Twitter thread. It turns out that the answer is complicated, and that it depends on which NFT we’re looking at.

(There are lots of other interesting issues, like what keeps the entity that controls the URI that an NFT points to from changing the data there, or just vanishing softly into the night, what powers a marketplace has over the NFTs that are sold there (“lmao nice decentralization“), how smart “smart contracts” really are, and so on, but this entry is already going to be too long, so here we’ll only wonder about what legal rights “owning” an NFT gives someone.)

NFTs that don’t grant much at all

In at least some cases that I found randomly web searching, the only right that I have to the “Art” associated with the NFT, is something like:

a worldwide, non-exclusive, non-transferable (except as specifically provided below in section 3 (b), royalty-free license to display the Art for your Licensed NFTs, solely for your own personal, non-commercial use

which is really a Whole Lot o’ Nothing. It’s roughly the same rights that you get to a video game or a music track, when you “buy” a copy online. And it’s a non-exclusive license, which means that they can sell the same thing to a whole bunch of different people.

(Although, given how NFTs work, I think they will have to create a whole bunch of NFTs pointing at the same digital data to do that; unless there’s an NFT protocol that allows a list of owners rather than a single one; EIP-721 doesn’t appear to, but who knows?)

In any case, this seems like a far cry from “ownership” in any significant and exclusive sense.

Apes with bafflingly contradictory terms

One of the more famous NFTs, the utterly-cringe “ape” pictures from the Bored Ape Yacht Club, has a different (and extremely confusing) set of terms. Those terms first say:

i. You Own the NFT. Each Bored Ape is an NFT on the Ethereum blockchain. When you purchase an NFT, you own the underlying Bored Ape, the Art, completely. Ownership of the NFT is mediated entirely by the Smart Contract and the Ethereum Network: at no point may we seize, freeze, or otherwise modify the ownership of any Bored Ape.

The bit about the Smart Contract and the Ethereum Network is essentially just talking about how the possessor of a relevant private key can transfer the association of the NFT to someone else; the important part at the moment is “you own… the Art, completely”.

The very next section then pretty much contradicts this entirely, saying (and apologies for the length):

ii. Personal Use. Subject to your continued compliance with these Terms, Yuga Labs LLC grants you a worldwide, royalty-free license to use, copy, and display the purchased Art, along with any extensions that you choose to create or use, solely for the following purposes: (i) for your own personal, non-commercial use; (ii) as part of a marketplace that permits the purchase and sale of your Bored Ape / NFT, provided that the marketplace cryptographically verifies each Bored Ape owner’s rights to display the Art for their Bored Ape to ensure that only the actual owner can display the Art; or (iii) as part of a third party website or application that permits the inclusion, involvement, or participation of your Bored Ape, provided that the website/application cryptographically verifies each Bored Ape owner’s rights to display the Art for their Bored Ape to ensure that only the actual owner can display the Art, and provided that the Art is no longer visible once the owner ofthe Bored Ape leaves the website/application.

This seems to my simple mind to be completely at odds with the part where they said “you own the Art, completely”. If I own the Art, how are they in any position to grant me a license? It’s my Art, how are they granting anyone a license to anything? If I own it “completely”, what does it mean that they are granting me a conditional license, to use it “as part of a marketplace” only provided that the marketplace does certain specified things?

If I violate the terms of this license, what happens? Do I cease to “own” it “completely”? Do I continue to own it, but they reserve the right to sue me under some theory that they have some residual rights to it, despite my complete ownership? It’s not at all clear.

The third section, and the only other section in these terms, purports to grant me a similar conditional license to do certain commercial things with the Art (which I “own” “completely”), and is similarly baffling.

I have asked the “Bored Ape Yacht Club” on Twitter what this all means; we’ll see if I get a reply.

(It may also be noteworthy that this doesn’t say whether it’s granting an exclusive or non-exclusive license to use the Art in these ways. Is there some default? Are they in fact reserving the right to sell multiple NFTs associated with the same Art? Or is there some other reason they didn’t say “exclusive”?)

The CryptoKitties and WWW Dot NFT License Dot Org

Another famous, and earlier I believe, NFT sort of thing is “Cryptokitties”, another big set of tiny images, of (wait for it) kitties rather than apes, and described as a “game”, but otherwise the same sort of thing. (Well, you can make new ones by “breeding” them, in a process I haven’t looked into, and no doubt some other stuff, but still.)

The main Cryptokitties page says, familiarly, “Each cat is one-of-a-kind and 100% owned by you; it cannot be replicated, taken away, or destroyed.” And then there is a set of terms and conditions, which pretty much completely contradicts this statement, in a similar way to the Ape one.

It doesn’t fall as blatantly into contradiction as the Ape one, as it first says, in a section called “Ownership”:

i. You Own the NFT. Each CryptoKitty is a non-fungible token (an “NFT”) on the Ethereum blockchain. When you purchase a CryptoKitty, you own the underlying NFT completely. This means that you have the right to trade your NFT, sell it, or give it away. Ownership of the NFT is mediated entirely by the Smart Contract and the Ethereum Network: at no point will we seize, freeze, or otherwise modify the ownership of any CryptoKitty.

This is very similar to the Ape one above, with the perhaps-important difference that it doesn’t say anything about “the underlying Art”. It talks only about “the underlying NFT”. (This wording seems odd to me, in that it first says that a CryptoKitty just “is” an NFT, and then it talks as though a NFT is something that “underlies” a CryptoKitty. Puzzling.) It’s not clear what it means to “own an NFT” (underlying or otherwise); that’s what this whole weblog entry here is about, after all. So we continue reading the license.

Lower down, in a section called “License to Art”, we find words very (very!) similar to those in the Ape license, divided into “General Use” and “Commercial Use”, granting “worldwide, non-exclusive, non-transferable, royalty-free license” to do certain rather limited things with the Art. Note that they explicitly say that it’s non-exclusive! The Commercial Use license contains the rather amusing (to one who hasn’t spent any money on them) limitation:

provided that such Commercial Use does not result in you earning more than One Hundred Thousand Dollars ($100,000) in gross revenue each year

I mean, what? How is the license holder supposed to avoid earning more than $100K in gross revenue? What happens if they earn $100,001? Is the license revoked? Will they send Cease and Desist letters?

Also unlike the Ape one, this license contains a section called “Restrictions”, which forbids doing all sorts of fuzzily-defined things with the Art. This includes for instance “modifying the Art in any way”, which makes no sense to me. Am I not allowed to load it up into The GIMP to see how it would look in greyscale? Or is it just a prohibition on creating Derivative Works, and if so why didn’t they say that; that concept is at least slightly well-defined. The Restrictions also forbid using “the Art for your Purchased Kitty in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others”, and a host of other things.

This is all really controlling, and is more like the license granted to users of a video game for what they can do in-game with their characters, then an actual license to use an image in the world as a whole. Given that CryptoKitties is (I guess?) mostly a game that is played inside an app, perhaps that’s really what is going on here: if you violate the license, they will terminate your account on the app, so you can’t play any more. I kind of doubt they really intend to go out and sue you for uses that you make of the Art (i.e. low-resolution cat cartoons) in the outside world. Maybe?

Oh, ah, wait! Here in the section called “Other terms of license”, they answer my question about what the user is supposed to do if they accidentally make more than $100,000. “If you exceed the $100,000 limitation on annual gross revenue set forth in Section 3.C(ii) above, you will be in breach of these Terms, and must send an email to Dapper at legal@dapperlabs.com within forty-five (45) days, with the phrase ‘CryptoKitty License – Commercial Use’ in the subject line, requesting a discussion with Dapper regarding entering into a broader license agreement or obtaining an exemption (which may be granted or withheld in Dapper’s sole and absolute discretion).”

To which my reaction is (A) lol omg, and (B) this is definitely an attempt to steer some middle path between “look, we just own all of this” as say Blizzard would no doubt do if you tried to use your WoW character commercially, and “you can take the adorable kitten picture that you buy, and do whatever you like, which is why it’s so valuable!” which they apparently decided very much against.

The CryptoKitties license is provided to other NFT-makers for re-use on www.nftlicense.org (note that the actual license is on the third tab of the main page there, and if you read the default “Intro” tab as containing the license you may end up saying silly things on Twitter due to your confusion; at least if you’re me you may).

It’s entirely possible that the Ape people at BAYC started with that license, and removed the “Restrictions” section and the bit about not making over $100K because they wanted to sell just the pictures, not the use of them within a game or app, and thought that the restrictions would make people not really want to spend money on them. And then they added the little bit about owning the Art “completely” similarly to make them more valuable, but without doing anything about the fact that the remaining two sections about license grants pretty much directly contradicted that.

Heh!

Are there any NFTs that give actual ownership?

This is a question that interests me, but to which I don’t know the answer. It would seem sensible that there is some NFT out there somewhere where if you “own” the NFT, you actually own all rights in the underlying entity (digital data object, plot of land in Flint County, etc), rather than just being granted some very limited rights to do a few things with some Art that someone else still owns in every other sense.

If you know of any, let me know! I will attempt to notice your comment and respond to it and everything!

Other reading: Here’s someone else that looked into this kind of stuff for some other NFTs last year; they know more about it than I do, and basically came to the conclusion that it’s rather a mess, and no one really knows. :)

Denotation and the SCOTUS

So Fuckface von Clownstick has nominated a person for the Supreme Court, to replace ol’ Tony Scalia.

Much of the discussion of this in the world will be about how utterly hypocritical it is of the Republicans to suggest that there is an obligation for the Democrats to not obstruct the confirmation process, given that just the other day they declared it a positive civic duty to obstruct the conformation of Merrick Garland, and that is quite a valid discussion.  But I’m not up to doing any of that here.

Looking into this Gorsuch person a bit, though, I find that (as well as not being Merrick Garland) he is an “originalist” just like ol’ Tony, and perhaps even moreso (if that’s possible). This inspires me to reach into the archives and reprint here, lightly edited for venue, my ancient piece on why “originalist” is a bad name.

By way of introduction, it’s a bad name because everyone believes that it’s the Constitution’s original meaning that’s important; the division is between those who think the original denotation is important, and those who think it’s the original connotation.  (Where “connotation” is used in its technical Philosophy of Language sense, not its informal “fuzzy subjective meaning” sense.)

The problem with the denotationist position can I think be highlighted by a very small thought experiment: the denotationist is obliged to hold that if we were to hold a Constitutional Convention today, and replace the entire text of the document with an exact copy of itself, the resulting document would be very different than the current one, and a very different set of things would be allowed and prohibited and so on.

And that seems just silly. (Menard’s example notwithstanding.)

But anyway, here is the original post, in the context of Scalia and 2005 rather than Gorsuch and 2017, but Truth is Timeless.

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One of the cool things that Audible does is make certain ‘public interest’ type audio programs available for free. I don’t know if they do this out the goodness of their heart or their ad budget, or if someone pays them to do it, but it’s cool anyway.

One of the free things they have is a talk that Supreme Court Justice Antonin Scalia gave on the subject of Constitutional Interpretation, at the Woodrow Wilson International Center for Scholars last March. (Due to Audible’s bizarre site design I can’t figure out how to give you a pointer to it that will work, but if you search on “Scalia” you’ll probably find it. Although it’s free, I dunno if you can get it if you don’t have an Audible account.)

I’m a bit more than halfway through it, and it’s interesting. I’ve previously expressed the opinion that J. Scalia is a fascist theocratic loon, and I’ve teased him for his defense of state laws against masturbation in his Lawrence dissent; what I’ve heard so far doesn’t make me any more comfortable having him on the high court, but it does give me some additional insight into his character and legal thinking.

Scalia doesn’t like to be called a “strict constructionist”; he prefers “originalist”. His idea is that the words of the Constitution meant something when they were adopted, and that it’s that meaning that we must follow today. And when he says “meaning” he isn’t thinking of the general meaning or connotation of the words; he’s thinking of the very specific denotation of the words: the exact specifics of what they were thought to mean at the time.

So since when the 14th Amendment was adopted in 1868 no one thought that “equal protection” included the right of women to vote, it required a further amendment to give them that right. Scalia says that nowadays we would have done it on 14th amendment grounds instead, and he clearly thinks that that’s a bad thing.

[2017 Note: In fact even back in 1868, lots of people thought that “equal protection” did in fact include the right of women to vote; something that rather heavily undermines Scalia’s point. The fact that when talking about this stuff he apparently never mentioned Minor v. Happersett or the various controversies and demonstrations around it, was one more thing that lowered my opinion of his intellectual integrity.]

Since “originalist” doesn’t strike me as a neutral term (when was the last time you saw “unoriginal” used as a compliment?), let me refer to Scalia’s position as “denotationist”; the words of the Constitution (or any other law) must be interpreted as having the same denotation, as picking out the same parts of the world, as they had when adopted.

(At the extreme denotationist position, if the Constitution had said that the number of Justices on the Supreme Court should be equal to the number of planets around the Sun, then the proper number of Justices would be seven, since that’s what people thought the words denoted at the time. I’m not suggesting that Scalia would actually carry the idea this far, although it wouldn’t surprise me if he did.)

So what’s the alternative to denotationalism? In this lecture Scalia claims that the only alternative is to consider the Constitution not a legal document at all, but just sort of an “exhortation”. He claims that he’s asked all sorts of people at law schools what principle they propose in place of his, and none have had an answer.

This strikes me as baffling, since the answer is so obvious. Rather than interpreting the words of the Constitution according to what they meant when adopted, we should interpret them according to what they mean now. If we’ve discovered since 1789 that there are really nine planets, or since 1868 that equal protection does mean the ability to vote regardless of gender, then that’s what the Constitution should be read as saying.

(Jim points out a possible circularity here, so let me say explicitly that the view I’m outlining here isn’t the tautological “the Constitution means today whatever it means today”; I mean something more like “the words in the Constitution mean today whatever the same words mean outside the Constitution today”. Modulo politically irrelevant typographical shifts and so on.)

I’d like to call this alternate view “connotational”, in contrast to Scalia’s denotationalism. And it seems to me highly unlikely that no one has ever suggested it to Scalia, or that he wouldn’t have thought of it himself for that matter. Scalia seems to have an enormous blind spot where differing opinions are concerned; not only does he disagree with non-denotational views of Constitutional interpretation, he doesn’t even see those views. At one point in the speech he says that he would have decided a certain case in a certain way based on the original meaning (“meaning”) of some words in the Constitution, whereas the court actually decided the other way, “based on — well, I don’t know what!”

He’s obviously a smart guy, but apparently there’s a filter between the part of his mind that is sharp enough to understand arguments on both sides of an issue and the part that consciously notices those arguments. (Jim points out that Scalia wouldn’t be the only one with this problem.)

Another possibility is that Scalia is simply a propagandist, and that pretending that the other side has no argument at all is just a rhetorical device that he likes to use. That’d be a pity.

So anyway. The denotationist view says that when the Constitution uses phrases like “due process” or “equal protection” or “freedom of speech”, we should consider those phrases to be convenient shorthands for whatever set of things people thought they meant when the words were adopted. If it wouldn’t make the Constitution implausibly long, we could replace each one with a list of all the things that people at that time thought the words referred to.

The connotationist view, on the other hand, says that “due process” means the processes that are due, the proceedings that are appropriate, and if our opinion about what is appropriate has changed since 1798, it’s our current opinions that count. Similarly, “equal protection” means protection that is equal, and if people in 1868 didn’t notice that disenfranchising half the country didn’t constitute equal protection, so much the worse for them; our current government should be guided by our current understanding.

(Now in practical terms it’s nice that we have the 19th amendment there making it explicit; but I do think that a 14th amendment case for female suffrage should in principle have had a very good chance of success.)

So Scalia’s basic theory isn’t particularly inconsistent or anything; I just strongly disagree with it. His inability to acknowledge the very existence of alternative theories is a flaw, and not one that makes me fond of him.

What else? Scalia’s theory leads him to say some odd (or at least odd to me) things about the Constitution’s role in protecting minorities. At one point he says that protecting minorities from the whim of the majority is one of the most important things that the Constitution does. But because he’s a denotationist he sees it as protecting only those particular minorities that the Framers would have wanted to protect (or that the adopters of later amendments would have). So Catholics, for instance, are protected (hem, hem), but not people who want to make love to people of the same gender.

(Sidenote: Scalia always refers to male-male sex as “homosexual sodomy”; a little subliminal reminder that the Lord has destroyed whole cities over the issue; ref “theocratic” supra.)

The equal protection clause can’t allow people of the same gender to marry, because when the clause was adopted people didn’t think it meant that. A connotationist can say that we’ve decided since then that equal protection really does mean that; but Scalia doesn’t even consider that as a possibility. It’s not simply wrong, it’s just not on his radar at all.

If we want to provide equal protection or due process or freedom of speech outside the original denotation of those terms, he says, what we have to do is persuade our fellow citizens to enact the appropriate legislation or Constitutional amendments. Which is to say, if we want to protect a minority that wasn’t popular back in 1789, we have to persuade the majority to play nice. Which of course seems completely wrong to me, given the whole “Constitution protecting the rights of minorities” thing.

The Framers were large-minded folks; I think that when they said “due process” or “freedom of speech”, they didn’t just mean the things that those words meant in the 18th century, but that they meant whatever those words might turn out to mean as the species matured.

Hm, I’ll bet we might even be able to find some writing of the Framers that say that! I wonder what Scalia would do then…

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And that’s that reprint from 2005; May 16th, 2005 specifically. There were at least a couple more weblog entries on this general subject, based on reader comments and other events of the day and so on, but that’s enough for now for here.

Maybe I should find some of Gorsuch’s writing, and see if he’s usefully interpreted as a denotationist (with an inability to even conceive of connotationism) like Scalia, or if he’s different in some interesting way.

But probably I’ll just get caught up in von Clownstick’s steady assault on the very idea of democracy, instead…

That secret and powerful message

It may have been as much as thirteen years since I mentioned my unaccountable interest in Wacko Tax Protesters, but I am happy to see that The Tax Protester FAQ is still there and may even have been updated since 2002.

I was reminded of the Whole Area by a Wonkette piece, How Are The Feminists Keeping Men From Getting Laid Today? (Oh, Wonkette, you are so funny with the funny headlines and all), which refers in passing to one “Peter-Andrew: Nolan (c)”, whose distinctive use of punctuation reminded me of ol’ David-Wynn: Miller, author of such lyrical prose as:

~2 FOR THE EDUCATIONAL-CORRECTIONS OF THESE MODIFYING-COMMUNICATIONS ARE WITH THESE CORRECTION-CLAIMS AGAINST THESE FICTIONAL-ADVERB-VERB-USAGE WITH AN OPERATIONAL-METHODS OF A FICTIONAL-MODIFICATION-PARSE-SYNTAX-GRAMMAR.(8500-YEARS OF THE SYNTAX-GRAMMAR-MODIFICATIONS WITH EVERY LANGUAGE)

Now normally we would not publicly point and/or laugh at such things, because schizophrenia is not a fun condition to have in general, but it seems at least plausible that D-W:M is actually quite sane, since although his new kind of speech does have the power to bring about world peace, since

~39~a FOR THE DUTY OF THESE QUANTUM-MATH-PARSE-SYNTAX-GRAMMAR-COMMUNICATION-CLAIMS IS WITH THE CORRECTIONS OF THE WRONG-WORDS IN THE NOW-TIME WITH THE MISSING-WORDS-HISTORY OF EVERY COMMUNICATION-TRANSLATION-WORLD-WIDE WITH THE CLAIM OF THE COMMUNICATIONS AND LANGUAGE-FRONTWARDS AND BACKWARDS WITH THE TRANSLATIONS BETWEEN THE FOREIGN-LANGUAGES WITH THE CLAIMS OF THE FACTS AND MEANING FOR THE PRICELESS-PEACE BY THE TREATIES BETWEEN EVERY COUNTRY.

the main point, or at least the thing he is by far most famous for, is the claim that if you use this ummmm language you don’t have to pay your taxes, or really obey any laws at all that you’d rather not, because after all

~76 FOR THE CONSTRUCTIVE-TREASON OF THE CONTRACT IS WITH THIS CLAIM OF THE DUTY AND AUTHORITY WITH THE SURRENDERING OF THE TRUTH-COMMUNICATIONS-CONTRACT INTO THE FICTION-STATE WITH THE FICTION-FRINGE-FLAG WITH AN OATH AND COMMUNICATION-CLAIMS OF AN OATH IN THE TRUTH, ALSO KNOWN AS THE DUTY BY THE SUPPORTING OF THE U.S.: W.C.-CONTRACT WITH THE CONSTRUCTIVE-TREASON BY THE DEFINITION WITH THE KNOWLEDGE WITH THE VOLITION BY THE DAMAGE: TITLE: 4: U.-S.-C.-S.-~THREE~3 OF THE FLAG OF THE U.S.C. BY THE FORMING OF THE JURISDICTION OF THE FICTION/FOREIGN-STATE-COMMUNICATION WITH THE CONTINUANCE OF THE DAMAGE OF THE CLAIMS AND RAPE OF THE CLAIMANT/ BY THE OFFICERS OF THE COURT.

and so on.

(Oh my just stumbled across his translation of the Lord’s Prayer; should I reconsider my thoughts on his mental condition?)

Anyway, it turns out that this is no longer, or perhaps never was, just a USian thing, but has also infested Canada and other FICTION-STATEs.

Here is an amusing weblog entry on the subject from our neighbors to the North: How Not To Manage a Bankruptcy or Income Tax Case, which led me I think to the text of Meads v. Meads, 2012 ABQB 571 (CanLII) which is a very nice overview of the whole Wacko Tax Protester situation by an actual judge writing actual legal reasons and stuff.

I have not finished reading through that yet.

(One of the scammier scams is the claim that if you get a bill or anything else really, you can just write “Accepted for Value” on it, and sign it, and send it back, and you’re all done. This is clearly stupid, but for some reason web sites like this are out there attempting to get the extremely gullible to pay money to find out exactly how to do it. I wonder how many bills they get back with “Accepted for Value” written across them, and how they feel about that.)

Now on the other hand I can’t be too tough on people who actually think that there are secret legal facts that the legal establishment is conspiring to keep from the common people, because it happens to be the case that there are secret legal facts that the legal establishment is conspiring to keep from the common people.

One of the things what was noted just in passing in something linked from something above was a list of various other wacko pretend-legal groups, and one of them was “the Fully Informed Jury movement” or other words to that effect.

And that drew me up a bit short, because unlike the wackos trying to convince people that if you attach signed postage stamps to your clothing you are effectively royalty (really!), the fully-informed jury folks are trying to convince people of something that is in fact true.

To quote from the article that was linked from whatever it was I found this mentioned in, the Journal of Criminal Law and Criminology, Volume 88, Issue 1, Article 8 (Fall 1997), Populism, Free Speech, and the Rule of Law: The Fully Informed Jury Movement and its Implications, by one Erick J. Haynie:

It has long been recognized that juries have the power to render verdicts inconsistent with the criminal law. Since jury acquittals are never subject to appellate review, a “not guilty” verdict will always be final regardless of the jury’s reasoning or its interpretation of the facts.

Which is to say, when you are on a petit jury and the judge instructs you that you are allowed to determine the facts of the case, but must strictly obey his pronouncements on the law, he is well sort of maybe lying just a bit, because in fact you can acquit for whatever darn reason you want. But the lying is in a good cause!

The great distinction in American jury nullification doctrine, however, is that while juries enjoy an unrestrained power to nullify the law, courts almost universally forbid this power to be explained to juries. The prevailing view among jurisdictions is that affirmative instruction on the ability to nullify would lead to lawlessness in the jury decision-making process.

That’s Haynie again. Isn’t that nice? Can’t trust juries to act reasonably if they knew the truth, so we’ll just conceal it from them. Otherwise it’s the End of Everything!

For a jury that is taught the legal reality that, no matter the facts of the case, an acquittal verdict is unreviewable and a guilty verdict will be given much deference on appeal, will also understand that it has nearly absolute power to determine questions of life, liberty, and property however it pleases. At that point, law is no more.

Welllll… This doesn’t seem all that blindingly obvious to me. (Especially since they can only acquit unreviewably, not convict.) Surely there is a position between “lie to people and keep this fact secret” and “tell them they can just do whatever the heck they want”. More on that below.

Our Haynie considers; what are we to do about this? Action is clearly required, now that people can find stuff out on the internet! And there’s even this Fully Informed Jury Association that is trying to tell people this true thing in an organized way omg!

(Their website does sound a little close-to-the-edge here and there; but imagine the feeling of finding yourself in the middle of a conspiracy-theory scenario that turns out to be true! Brrrr.)

Anyway, Haynie again, clutching his pearls:

Silencing attorneys and refusing nullification instructions, however, is no longer an adequate solution to the nullification problem. With the rise of FIJA, judges are no longer the sole gate keepers of that secret and powerful message. Consequently, as the FIJA movement continues to grow it will become necessary for the jurisdictions to develop new approaches to the nullification problem that are more mindful of juror awareness of jury nullification.

Yes, new approaches, that’s what we need!

Fortunately and amusingly, of the various possible new approaches Haynie considers, all of them, except for making it harder for FIJA types to actually throw information at jury members on courthouse grounds, turn out to be unworkable and/or clearly unconstitutional.

(And at this point I begin to suspect that Haynie is a genius of gentle satire, and he’s actually pointing out that the project of keeping the “secret and powerful message” under wraps is actually doomed.)

His conclusion:

And so time will march on until either FIJA withers into nothingness or the rule of law comes to have “about as much force as the Cheshire Cat’s grin.” True lovers of liberty will fear the latter over the former. Anarchy is no better friend of freedom than an overreaching government.

Quite the doomsday scenario! The assumption here is that if people find out from the evil internet that they are allowed to vote Not Guilty just because they think the law is unjust, say, they will start capriciously acquitting people randomly right and left, and it’s Game Over for law and order.

And if you have that low an opinion of potential jurors, you must be pretty unhappy that we have juries at all! Let alone Grand Juries! Why, those people could do anything!

I think in actual practice there are all sorts of jury instructions that could acknowledge the nullification power without messing anything up. Top of the head:

I’ve just explained to you that you are here to determine the facts of the case, and have a duty to follow my instructions as to the law. There is one exception to this: if the facts of the case and the law are such that the accused did violate the law beyond a reasonable doubt, but that in this instance a guilty verdict would be gravely unjust, so that you in good conscience simply cannot vote to convict, you have a duty to vote to acquit. Be aware that this is an extremely rare situation; District Attorneys work very hard not to bring you such cases, and judges work very hard to make sure that when one slips through, we catch it before it gets to the jury. But just for completeness, I mention this here.

All right, that exception aside, to return to what I said a moment ago…

And yeah I’m sure that that has big holes in it since I Am Not A Lawyer and I only thought about it for like ten minutes, but something like it seems plausible to me.

Better than lying to people and just hoping that they don’t find out the truth and bring about The End of Everything, anyway…

But you still have to pay your taxes!

Greece v Galloway: well that’s annoying!

You can tell I’ve been busy because I failed to notice this last month:

Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function. If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case than the one presently before the Court. — Greece v Galloway

Basically the Supremes were given the chance to say that sectarian prayer (“we acknowledge the saving sacrifice of Jesus Christ on the cross”), or even prayer in general (“blah blah blah God blah blah”), is out of place in government contexts since some of the salient citizens could obviously feel excluded; and they did something close to the opposite, on the amusing and infuriating assumption that this stuff “unites” us in our “common effort”.

There is good coverage of this on Friendly Atheist and very good analysis on ScotusBlog.

Justice Kagan gets it just right in this bit of dissent:

Contrary to the majority’s apparent view, such sectarian prayers are not “part of our expressive idiom” or “part of our heritage and tradition,” assuming the word “our” refers to all Americans.

but also disappointingly does exactly the same thing herself in writing

None of this means that Greece’s town hall must be religion- or prayer-free. “[W]e are a religious people,” Marsh observed.

Not assuming that the word “we” refers to all Americans, eh, Justice Kagan? Hem hem!

The conservative Justices are saying, as conservative Justices tend to, “people like us have no problem with this, and people who aren’t like us don’t really matter much.”

And that’s always bad.

But it’s sad that, as ScotusBlog notes, even the dissenters seem to assume that government prayer is just fine, and the only thing that might make anyone feel unacceptably excluded is if it’s the wrong kind of prayer.

Phht.

What a lot of things

So a ridiculous number of things have been happening! And I have been too busy (digging big soothing pointless caverns in Minecraft, for instance) to research them and write down Wise Things. I will therefore just Briefly Note them.

There is no more right to remain silent unless you first say some legalistic magic words, thanks to the horrifying decision in Salinas v. Texas, which expands on the prior horrifying decision in Berghuis v. Thompkins. (Source)

The Voting Rights Act has been gutted of one of its more vital pieces (the piece that says that places with a history of vote suppression have to get changes to their voting systems pre-cleared by the DoJ) in Shelby County v. Holder, on the theory that even though that part of the Act has been used many times recently, and voter suppression has seen a big upswing in popularity recently, we don’t need it anymore. Or as this guy puts it:

…it is the opinion of the Court’s majority that the enforcement provisions of the Voting Rights Act worked so well that to continue enforcement under the existing scheme is unconstitutional.

In the ideal world this would not be a big deal, as Congress could just update the formula to determine which jurisdictions have to get the pre-clearance. But given that Congress is currently incapable of doing anything significant, that will probably not happen, and we will be left in this situation (same source):

While preserving the purpose and the intent of the momentous civil rights law—as set forth in Section 2 of the Voting Rights Act (“VRA”) which proclaims that no American can be denied the right to vote based on their race or gender­—the Court struck down the sole method of enforcing the intent of the law.

As well as finding that the federal government can’t meddle so directly with certain state and local voting systems in order to prevent discrimination, SCOTUS also found that the federal government can’t ignore certain state laws in order to further discrimination. Which is to say, DOMA is dead (finally!).

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

That’s Kennedy, for the majority, in United States v. Windsor.

I really need to read these decisions, see who was on which side, why DOMA went down to the 5th rather than the 14th, etc. Attentive readers will note that I myself would tend to support Federal power in the Voting Rights Act, while being against it in DOMA, because for me the important question is not “does this give more or less power to Federal or State governments?”, but rather “does this tend to protect the less powerful from the more powerful?”.

That is probably the thing that makes me a Lefty. :)

SCOTUS also brought back same-sex marriage in California, but on a relatively narrow technicality, so while that’s yay it’s not quite as interesting. At least that’s my impression so far (the actual technical finding is that just because you are the proposer of a ballot initiative, if that initiative is overturned by the courts and the government decides not to appeal, you don’t have standing to appeal it yourself just because of having proposed it in the first place).

NPR has annotated versions of both same-sex-marriage decisions, for your reading and analysis pleasure.

(And remind everyone to say “same-sex marriage”, not “gay marriage”! Bisexuals get to marry people of the same sex, too. Heck, even asexuals and straight people can if they want to! It’s all about Teh Freedoms!)

In non-SCOTUS news, Facebook had a bit of an embarrassment when first they accidentally leaked tons of data about millions of people, and then it turned out that lots of it was data that the people hadn’t even given them. Ooops! It was data harvested from the contact lists and address books and cellphones of “friends” (and “friends” of “friends”, and…) and squirreled away in FB’s vast subterranean vaults.

So basically, if you’ve ever given anyone any information about yourself, chances are that Facebook has it now.

Which you were probably already assuming, but this rather drives the point home. Along with the fact that whatever data they have, they may accidentally release to anyone you can think of in the future.

The xkcd comic “Time” is still going. There are various clever widgets around the Web to let you explore it, view it in time scales shorter than weeks, etc. I like this one.

Relatedly, here is a game in which you can take only one step per day. It is slow! I have moved a few steps to the right so far!

And also perhaps relatedly, I am rather plateaued on Lumosity (up in the “you are extremely awesome” range, natch, but still). I hope they add some more games or something soon.

Second Life, on the other hand, is still going strong, and I am still spending many hours a week there, building buildings, writing scripts, going to art shows, sailing sailboats, and so on. In fact it is having its Tenth Birthday right around now (see Community Celebration page), frequent rumors of its death to the contrary notwithstanding.

And that is all that springs immediately to mind! Now I will try to find time to read at least the most significant of the decisions above, and maybe come back eventually and write another post heaping scorn upon Scalia or something. :)