Author Archives: Jim Astrachan

Illinois’ Problematic Gun Law

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I enjoy disparate interests. I teach Second Amendment law, and teach and write a treatise on advertising law. I was surprised that two of my legal interests coincided when Illinois House Bill 218 was signed into law by the Illinois Gov, J.B. Pritzker.

H.B. 218 is an omnibus gun safety law, and one of its prohibitions is the advertising of a gun in a way that may support, recommend or encourage a person under 18 to unlawfully purchase, possess or use a firearm in Illinois. In addition to the vagueness of this criminal statute, it has First Amendment problems. Maybe Second Amendment issues, too.

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Why AI Developers Are Being Sued

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There is no clarity of result available to artificial intelligence litigants who tread in the Land of Oz.

Plaintiffs are filing suits against AI developers at a quick pace; their grounds are that AI really creates nothing new but merely reads and copies billions of other peoples’ protected works from the Internet. Using these works, and in reaction to a user’s commands, AI combines elements of existing works into something else, whether art or prose.

The new work may be a derivative of an old, copied work for which the developer needs a license to use the old work. Many authors think so, and have joined together to sue, although for now their suits raise more questions than there are answers.

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The Taco Tuesday Tussle

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Some fast food trademarks make me hungry. Taco Bell’s recent fight with Taco John’s over Taco Tuesday® did so. But trademark battles between two fast food chains aside, I thought more interesting was how Taco Bell turned the dispute into entertaining advertising that promoted its brand more than its product. More on this shortly.

Is Taco Tuesday a proprietary trademark, a designator of a single source of a product? Is it a generic term, available for use by all sellers of tacos to describe in terms generally known to the public that tacos are eaten or a good deal on Tuesdays? The question to chew on is what has the public come to understand Taco Tuesday to represent? A designator of source, or is it merely a declaration used by many that Tuesday is a day to eat tacos? Even if it began life as a designator of source, it can become generic through use. Think shredded wheat, or aspirin. Continue reading →

How Much Should Artificial Intelligence, AI Advertising Be Regulated?

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Artificial intelligence continues to dominate the news, which is rather remarkable considering all the other happenings of importance. The discussion of dangers posed by artificial intelligence took center stage in Congress when Sam Altman, CEO of OpenAI, told a Senate panel hearing that society is at a “printing press” moment and that Congress needs to regulate AI.

Altman, whose company created ChatGPT, advanced his three-point plan. He wants: a new federal agency to license AI models, with the power to revoke licenses if a licensee does not comply with standards; implementation of safety standards and evaluations of dangerous AI capabilities; and audits of a model’s performance. An entrepreneur and business leader asking that his industry be regulated is as rare as a beef steak at a vegan banquet. Continue reading →

Impurities in the AI Engine’s Gas Tank

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The European Union respects data privacy; the United States does not.

The Wall Street Journal’s report that E.U. regulators fined Meta, Facebook’s parent, $1.3 billion for privacy violations struck a raw nerve. The United States has no laws to protect the privacy of consumer data, and Meta was fined because it transferred data collected from its European users for storage in the United States.

E.U. regulators expressed concern that this U.S.-stored data would be purloined by American spy agencies without knowledge or legal recourse of the people from whom it was collected purloined.

Instead of stealing consumer data, U.S. spy agencies are now buying, and sharing, vast quantities of personal data, replacing the intrusive surveillance that spy and law enforcement agencies, domestic and foreign, once used. This is the conclusion of a report commissioned by the Director of National Intelligence. The purchase of data is not subject to Fourth Amendment restraints.

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Do You Know What Your Data is Doing?

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The headline is a mouthful, but in the time you read this column your personal data has probably been collected by the more sophisticated vendors with whom you do business and is being used to target you for more purchases. This now-common practice might offend or it might be seen as consumer-useful.  It’s very clear, though, that artificial intelligence plays a role in selecting data capture and crafting the ad messages. Continue reading →

Fair Use and the Fourth Estate

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April must be copyright month. Those who follow copyright, photography and the free press will have their interests piqued by the Southern District of New York’s holding of fair use as a defense to infringement involving the events of Jan. 6, 2021, Fox News and a freelance photographer who, on January 6, was at the Capitol and filmed the activities.

In particular, she videoed Kelly Meggs participating in a stack formation ascending the Capitol’s stairs. The Department of Justice charged Meggs and attached to its complaint a copy of a still from the photographer’s video.

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All Sorts of Issues with Artificial Intelligence

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“AI is the next revolution … there is no going back.”

— M. Werneck, executive vice president, The Kraft Heinz Company.

Not all revolutions benefit humanity. Tech luminaries Elon Musk and AI pioneer Yoshua Bengio recently warned we might be circling the drain. They, and others, have called for a six-month moratorium on training artificial intelligence systems more powerful than Microsoft’s GPT-4. They caution AI can be dangerous to society in ways not understood.

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