WHEN WORLDS COLLIDE: AI MEETS COPYRIGHT

Copyright and Artificial Intelligence (AI) may be on a collision course. The capacity to comb through vast troves of data to generate arguably novel stories, poems, artwork, music, and other expressive works, gives rise to an array of tough legal issues.

Are the generated works truly original and therefore subject to copyright? If so, who owns the copyright? And what scope of protection does such a copyright confer?

Answering these questions poses formidable challenges. But it’s important to put this in perspective. We’ve been here before. Copyright and technology have collided again and again over the ages. In fact, there were collisions before there were copyright statutes. In each case, solutions were found, and copyright emerged intact or even stronger.

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IS AMERICA IN DECLINE?

Pondering the possibility of American decline has become a recurring issue among commentators and pollsters. At the domestic level, it is easy to see why. Our cities are witnessing an upsurge in lawlessness, deterioration, and filth. Common items such as toothpaste are placed behind locked partitions to discourage shoplifting. Youth mobs from Chicago to Compton trash businesses and terrorize bystanders. In a development reminiscent of the Dark Ages, New York City’s rodent infestation has grown so extensive, the City has appointed its first “Rat Czar” to deal with the crisis.

But American decline is not only a domestic issue. Less visible, but equally if not more serious, are the signs of America’s decline abroad. The recently leaked military documents reveal a worrisome world in which American prestige is diminishing.

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THE OCTOBER SURPRISE THAT WILL NOT DIE

Last week, the New York Times published a front page story on a supposed attempt “to sabotage the re-election campaign of the president of the United States” by persuading Iran to hold the American hostages until after the 1980 election. According to Ben Barnes, the now 85-year old protégé of former Texas Governor John Connally, he and his mentor embarked on a tour of Middle East capitals in July 1980, asking regional leaders to pass this message on to Tehran: “Don’t release the hostages before the election. Mr. Reagan will win and give you a better deal.”

Barnes accused the Reagan campaign of promising that “a future Reagan administration would ship arms to Tehran through Israel in exchange for the hostages being held until after the election.”

The story is the latest chapter in a long effort – an effort that began just weeks after his election – to blemish the reputation of Ronald Reagan by claiming that his 1980 election victory was obtained by persuading Iran’s theocratic rulers to hold the hostages until after the election, thus depriving the incumbent Jimmy Carter of any credit for securing their release. According to this so-called “October Surprise” theory, Reagan’s campaign team traded the hostages’ freedom for his election victory.

The October Surprise would be outrageous if true. But it is not.

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WHY ISRAEL HELPS

When a disastrous 7.8 magnitude earthquake recently struck southern Turkey and Syria, a number of countries sent search and rescue teams, medical personnel, and emergency supplies. Among the first to do so was Israel.

Israel’s rush to offer aid to those two countries may strike some as puzzling.  Syria has never recognized the State of Israel, and in fact considers itself in a state of war against it. Not surprisingly, the Syrian government quickly rejected Israel’s offer.

Israel’s relations with Turkey are more complicated. In 2011, following the Gaza flotilla incident, Turkey expelled Israel’s ambassador. In 2013, Turkish Prime Minister Recep Erdoğan called Zionism “a crime against humanity.”  In 2018, Turkey expelled Israel’s ambassador again, this time following protests in Gaza over the U.S. opening of its embassy in Jerusalem. Relations have warmed considerably since then, and the two countries announced the restoration of full diplomatic relations last August. But Turkey continues to openly support Hamas, a terrorist organization dedicated to the destruction of Israel, and has hosted its delegations in 2019 and 2020.

Why does Israel rush to offer aid to countries whose policies are hostile to it?

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ARE WE NOT ENTERTAINED?

On Monday night, Buffalo Bills safety Damar Hamlin, in the course of what appeared to be a routine tackle, received a hard hit to the chest. He got up from the turf, stepped backward, then collapsed.

Since his fall, the public has fixated on Hamlin’s condition. By the time the game was officially suspended with 5:58 left in the first quarter, it had become the most watched “Monday Night Football” game in ESPN history. The story was front page news on the New York Times for three consecutive days, matching the coverage devoted to the vote for House Speaker and the war in Ukraine . Hamlin’s online toy drive, which had a goal of $2,500 before his collapse, soon topped $8 million in donations. President Biden called Hamlin’s parents to offer support, then tweeted about it.

Why the fascination? Damar Hamlin is a well-respected and well-liked athlete, but he hardly qualifies as a superstar. He was a 6th round draft pick in 2021, and was used sparingly in his rookie year. He did not win a starting position until September, when his teammate Micah Hyde suffered a neck injury.  It is safe to say that before his collapse, few sports fans outside Buffalo knew much about him. Yet he has become a national celebrity, with millions of people, including many who do not even follow football, keeping up with the daily medical updates and praying for his recovery.

The answer may lie in the trade that we strike with the superbly conditioned men and women who entertain us by playing professional sports. They are our heroes. But they are not our gods. The distinction is important and relevant to the trade.

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THATCHER THE DOG, R.I.P.

My wife, who rises earlier than I do because she has the morning dog-walking duties, woke me the other day to tell me that Thatcher was not moving.

Thatcher is a Goldendoodle or “Groodle,” a species developed in the 1990s by crossing a Golden Retriever with a Poodle. She joined our family about the same time our youngest child graduated high school and headed off to college. Thanks to Thatcher, we did not become empty-nesters.

The previous day, my wife had taken her on a five mile hike. That night, she lay by my feet in the living room, asleep by the fire, while I binged on White Lotus. When I got up to go to bed, I stepped over her carefully and wished her a good night. Sometime that night, she had stirred, moved to our bedroom, lain down, and died quietly without disturbing us.

When my wife woke me, Thatcher was lying beside our bedroom door, facing toward the patio. It appeared that she had been thinking of going out. Instead, she died as she had lived, causing no trouble.

She was just shy of 13, a long life for a dog.

Thatcher had the sweetest disposition an animal could have. She was visibly overjoyed when anyone – friend, relative, postman, deliveryman — rang the bell. She raced to the door to welcome the visitor and to ascertain by a hurried nasal inspection where he had recently been, whether he had pets, and whether he was carrying treats. She held a firm conviction that any creature walking on two legs was put on Earth to play with her.

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AVERTING FUTURE GRINER DEALS

No sooner had WNBA star Brittney Griner and convicted arms dealer Viktor Bout crossed paths on the tarmac at the Abu Dhabi airport than the debate began in this country: Was the United States fleeced when it gave up Bout for Griner, while leaving former Marine Paul Whalen behind?

The arguments on both sides have been fervid, often verging on the vituperative. Critics say Griner was not worth the trade. They have referenced the time she refused to come out of the locker room for the national anthem; “Brittney Griner Hates America” is trending. On the other side, supporters of the deal have blamed “pay inequity” for Griner’s arrest, arguing that sexism compels WNBA athletes to play in hostile countries like Russia to earn extra income. Some have also mentioned that Whalen is no angel; he received a “bad conduct” discharge from the Marines, due to larceny.

All this sniping misses the point. The swap’s significance transcends Griner, Bout, and Whalen. It even transcends Russia. The trade is a symptom of a new and dangerous form of warfare being waged against this country by several foreign governments: seizing and holding American citizens to humiliate the United States and to advance these nations’ foreign policy objectives.

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AFTER THE MIDTERMS

In 2010, President Obama, surveying the wreckage of his Party in the midterm elections, deemed the results a “shellacking.” In November, President Biden may soon be appropriating the same term, or seeking a synonym. But Republicans will face an identity crisis in the wake of midterms victory, and that crisis could prove more dangerous to the GOP than defeat at the polls may prove to the Democrats.

Polls show Republicans poised to take control of the House of Representatives and possibly the Senate. Granted, there are good reasons to view these polls with skepticism. But those reasons suggest that the polls, if inaccurate, are probably understating the Republicans’ prospects, not overstating them.  Andrew Prokop of Vox has analyzed 48 close (within 10 points) Senate elections from 2014 to 2020, and found 40 elections in which polling understated Republicans’ margins by an average of 5 percentage points. In contrast, he found only 8 elections in which polling understated Democratic candidates’ margins, and then by an average of only 1.8 percentage points.

Nate Cohn of the New York Times notes that only 0.4% of pollster dials result in a completed interview. That means that a pollster must spend two hours making calls to obtain a single response. Republican voters, already suspicious of pollsters, are more likely than Democrats to be among the huge majority ignoring such calls.

In addition, between now and November 8, the numbers, to the extent they move at all, are likely to move favorably for the GOP. In late September, the Real Clear Politics average of polls projected Republican gains in the House in the range of 5 to 38 seats. This week, the range has grown to 12 to 49 seats. If these trends continue, the range will almost certainly be higher on election day, meaning that a Republican net gain of 50 House seats is a real possibility.

Turning to the Senate, Republican candidates are moving up in all of the toss up races. As with the House, the current crop of polling results likely understates the dimensions of the coming Democratic disaster. The Real Clear Politics website projects a net gain of 3 seats, meaning a 53 – 47 Republican majority. (We may have to wait until December to see the final numbers because neither Party candidate is likely to surpass 50% in Georgia – necessitating a runoff the following month under that state’s peculiar rules.)

Again the RCP projection may understate GOP prospects. It assumes the Democrats will hold the New Hampshire and Washington senate seats occupied by incumbents Maggie Hassan and Patty Murray. But Hassan has seen her lead over Don Bolduc shrink from 7.6 points in September to 3.4 points, and Murray has seen her lead over Tiffany Smiley diminish from 13.7 points to 5.0. Republicans have a real shot at flipping one or both seats.

To sum up, on November 8 we may well see a Republican “wave” election, in which the GOP not only secures control of Congress, but does so decisively, gaining close to 50 seats in the House and 4 or 5 seats in the Senate.

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A CALIFORNIA COURT’S DECISION DEFINING BUMBLE BEES AS “FISH” IS A LOSS — FOR CALIFORNIA COURTS

Last week, the California Supreme Court decided to let stand a lower appellate court decision holding that bumble bees are “fish” under the state Endangered Species Act. Chief Justice Tani Cantil-Sakauye, anticipated (quite correctly!) that her ruling would puzzle the public. She wrote:

…[O]ur decision not to order review will be misconstrued by some as an affirmative determination by this court that under the law, bumble bees are fish. A better-informed observer might ask: How can the court pass up this opportunity to review the Court of Appeal’s interpretation of the Fish and Game Code, which seems so contrary to common knowledge that bumble bees are not a type of fish? Doesn’t this clear disconnect necessarily amount to “an important question of law” … warranting this court’s intervention, because the Legislature could not possibly have intended such a result?

Were things always that simple.

Well, as a matter of fact, some things are always that simple. It is, and always has been, a simple fact that bumble bees are not fish. Pretending that the law provides otherwise – even while acknowledging that “the Legislature could not possibly have intended such a result” – is worse than judicial error. It is a self-inflicted wound on the credibility of that beleaguered branch of government. Polls show that in recent years the public has already been losing confidence in our judicial system. Little wonder.

How did this happen?

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OUR FIRST LIBERTARIAN PRESIDENT?

For many ordinary Americans, politics has become an unpalatable pastime, too distasteful to digest or follow. It seems incredible that in a country of 330 million, the foremost political leaders are Joe Biden and Donald Trump, two men of low character and of lower, if any, principles.

That may explain why Troy Senik’s biography of Grover Cleveland, A Man of Iron, arrives as such an unalloyed joy. Turning from cable news to Senik’s work is like emerging from a fetid swamp to find oneself alongside a pristine brook.

Many see in Cleveland our first  and perhaps only outright libertarian president. He was a firm exponent of laissez faire economics, federalism, the gold standard, and anti-imperialism. Granted, to describe him as a libertarian runs the risk of over-simplification. His politics were more nuanced than that. For example, years before Teddy Roosevelt made conservation popular, Cleveland was setting aside forest land in Wyoming’s Grand Tetons, Washington’s Olympic Peninsula, and South Dakota’s Black Hills.

Still, the libertarian label is more accurate than not.

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