Are Faceprints the New Fingerprints? Clearview AI Facial Recognition Finds its Way into Russo-Ukrainian War

By Annalisa Gobin

Clearview AI’s facial recognition technology caused a privacy uproar when it began scraping the internet and personal social media pages for images to store in its facial recognition database.[1] Clearview AI’s software then places nifty facial algorithms on the billions of images it collects so that both the software and database can be sold to law enforcement agencies.[2] In February of 2022, Clearview AI informed investors that it was on track to acquire a total of 100 billion faces within its database (equivalent to 14 photos per each of the 7 billion people on Earth).[3]

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By Najah Walker

 

The idea of a metaverse is not a new concept.[1] The term “metaverse” was first coined by speculative fiction writer, Neal Stephenson, in his 1992 novel “Snow Crash”.[2] This concept was later expanded upon by Ernest Cline in his 2011 novel “Ready Player One”.[3] So, what exactly is a metaverse?

At this point in time, there is no universally accepted definition of the metaverse.[4] However, many consider it to be the eventual successor to the internet.[5] Venture capitalist, Matthew Ball, describes the metaverse as “an expansive network of persistent, real-time rendered 3D worlds that support continuity of identity, objects, history, payments, and entitlements.”[6] He discusses the key component to the metaverse, which is that it “can be experienced synchronously by [an] unlimited number of users [….].”[7] So, in simpler terms, the metaverse is the convergence of physical and virtual reality.[8] Facebook describes it as a “virtual space where you can create and explore with other people who aren’t in the same physical space as you.”[9]

It appears that to some extent, the metaverse has been around for a long time.[10] Many of the social elements of the metaverse have been found in video games such as Minecraft, Fortnite, and the social platform Second Life, which was created nearly twenty years ago.[11] However, those virtual reality games are not as advanced as what the complete metaverse will likely be because technology has significantly advanced since then.[12]

Late last year, Facebook changed its corporate name to Meta and announced plans to build a virtual-reality platform, Horizon Worlds.[13] Meta’s CEO, Mark Zuckerberg, announced that the then-existing Facebook brand could not “represent everything that [they’re] doing today, let alone in the future” and the metaverse would serve as a place where people can “game, work and communicate in a virtual environment, often using [virtual reality] headsets.[14]

While Meta’s new virtual-reality platform may be the next major innovation, it poses dangers society may not be prepared for.[15] Weeks before Meta officially opened access to Horizon Worlds, a beta tester reported that she was sexually assaulted by a stranger on the platform.[16] Upon review of the incident, Meta found that the beta tester “should have” used a tool called “Safe Zone”.[17] This feature can be activated when users feel threatened, and it prevents other users from touching, talking to or interacting with their avatar until Safe Zone is lifted.[18]

Another user reported that “within 60 seconds of joining” she was verbally and sexually harassed by three to four male avatars, with male voices.[19] This woman was conducting research for Kabuni Ventures, a technology company, when the assault occurred.[20] The woman also reported that she received comments from others calling her experience a “pathetic cry for attention” and encouraging her not to choose a female avatar next time.[21]

These negative experiences beg the question: are we truly prepared for an unregulated metaverse? Joseph Jones, president of an investigative agency specializing in cyber media, says that it is unlikely that there would be a strong legal case for sexual assault in the metaverse.[22] This is largely because avatars could be anonymous and difficult to track.[23] Also, it may be difficult for victims to find law enforcement agencies “legitimately willing to help.”[24] It appears that remedies for victims of sexual assault in the metaverse may be limited.[25] Still, there has been a call for the industry to introduce more effective anti-harassment features and safety measures.[26] Hopefully, as the metaverse continues to emerge and develop, it becomes a safe and inclusive place for all.

 

[1] Brian X. Chen, What’s All the Hype About the Metaverse, N.Y. Times (Jan. 18, 2022), https://www.nytimes.com/2022/01/18/technology/personaltech/metaverse-gaming-definition.html.

[2] Id.

[3] Id.

[4] Adi Robertson & Jay Peters, What Is the Metaverse and Do I Have to Care?, The Verge (Oct. 4, 2021), https://www.theverge.com/22701104/metaverse-explained-fortnite-roblox-facebook-horizon.

[5] Id.

[6] Chen, supra note 1.

[7] Id.

[8] Id.

[9] Robertson & Peters, supra note 4.

[10] Chen, supra note 1.

[11] Id.

[12] Id.

[13] Daniel Thomas, Facebook Changes Its Name to Meta in Major Rebrand, BBC (Oct. 28, 2021), https://www.bbc.com/news/technology-59083601.

[14] Id.

[15] Tanya Basu, The Metaverse Has a Groping Problem Already, MIT Technology Review (Dec. 15, 2021), https://www.technologyreview.com/2021/12/16/1042516/the-metaverse-has-a-groping-problem/.

[16] Id.

[17] Id.

[18] Id.

[19] Michelle Shen, Sexual Harassment in the Metaverse? Woman Alleges Rape in Virtual World, USA Today (Jan. 31, 2022), https://www.usatoday.com/story/tech/2022/01/31/woman-allegedly-groped-metaverse/9278578002/.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

Image source: https://www.businessinsider.com/metaverse-zuckerberg-facebook-virtual-world-leave-people-behind-2021-12

By Mark Edward Blankenship Jr.*

 

Unlike the Internet, which has been defined as a global network of billions of computers, millions of servers and other electronic devices that are facilitating worldwide communication, the metaverse combines aspects of physical reality, virtual reality, augmented reality, artificial intelligence, social media, online gaming and cryptocurrencies, allowing users to interact virtually, making it conceptually distinct. Within the metaverse, people can meet, and digital assets—land, malls, offices, products, and avatars—can be created, bought, and sold. Moreover, the metaverse is attempting to redefine work culture, due to the pandemic. As the metaverse gradually aims to be the new virtual experience that supersedes the Internet, current employment laws and regulations provide little insight as to navigating the workplace. For instance, what might be considered discrimination or harassment within this new workplace atmosphere? How might the company’s resources and infrastructure face harm?

When the Internet first underwent legal examination, judges and practitioners made much of what they could through the implementation of analogy and common law claims. One of the first common law claims applied to the context of the Internet was trespass to chattels, which occurs when an individual intentionally and without authorization interferes with possessory interest in chattel, and such unauthorized use proximately resulted in damage. One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if: (a) he dispossesses the other of the chattel; (b) the chattel is impaired as to its condition, quality, or value; (c) the possessor is deprived of the use of the chattel for a substantial time; or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.

CompuServe Inc. v. Cyber Promotions, Inc. became the first to apply this tort in the context of cyberspace. In that case, the Defendant bombarded the Plaintiff’s email system with enough “spam” email to cause harm to the system’s functionality. In Ebay v. Bidder’s Edge, Inc., where an auction data aggregator used a ‘crawler’ to gather data from eBay’s website, the court found that even though the Defendant’s interference was not substantial, any intermeddling with or use of another’s personal property established such possessory interference with Plaintiff’s chattel. Additionally, the intentional use of Plaintiff’s bandwidth was considered harmful, because of its aggregative effect.

In Intel Corp. v. Hamidi, the Defendant, a former employee of Plaintiff Intel Corp., sent e-mails criticizing Intel’s employment practices to numerous current employees on Intel’s electronic mail system. Hamidi continued to send these emails, even after being sent several cease-and-desist letters from Intel. However, he breached no computer security barriers in order to communicate with Intel employees. Additionally, Hamidi’s communications to individual Intel employees caused neither physical damage nor functional disruption to the company’s computers, nor did they at any time deprive Intel of the use of its computers. Instead, the contents of the messages, however, caused discussion among employees and managers.

The court noted that unwanted electronic communications may constitute a trespass to chattels if the volume and frequency of the communications is sufficient to overly burden the recipients’ email system. However, the court found the current case to be distinct from the CompuServe decision because the messages transmitted by Hamidi were infrequent and did no actual harm to Intel’s computer system. Any harm caused to Intel’s employees by reading the emails stemmed from the content of the emails, rather than the actual quantity or frequency of those emails. The court refused to extend the tort of trespass to chattels encompass “impairment by content.” Furthermore, Intel could not assert a property interest in its employees’ time, since this would insinuate that employees were chattels, which they are not.

Hamidi’s dissenting opinions do raise some concerns about the effects this one common law tort could have in a realm where the workplace, the physical world, and the digital world are intertwined. Judge Brown wrote in his dissenting opinion that Hamidi should have been held liable for trespass to chattels because Intel had invested millions of dollars to develop and maintain a computer system in order to enhance the productivity of its employees and the time required to review and delete Hamidi’s messages diverted employees from productive tasks and undermined the utility of the computer system. And Judge Mosk believed that the majority failed to distinguish open communication in the public “commons” of the Internet from unauthorized intermeddling on a private, proprietary intranet. Hamidi’s actions, in crossing from the public Internet into a private intranet, is the equivalent to intruding into a private office mailroom, commandeering the mail cart, and dropping off unwanted broadsides on 30,000 desks. Because Intel’s security measures have been circumvented by Hamidi, the majority leave Intel, which has exercised all reasonable self-help efforts, with no recourse unless he causes a malfunction or systems “crash.” . . . Intel correctly expects protection from an intruder who misuses its proprietary system, its nonpublic directories, and its supposedly controlled connection to the Internet to achieve his bulk mailing objectives—incidentally, without even having to pay postage.

The court in Hamidi seemed to draw a line with regards to “impairment by content.” Some additional factors that may need to be considered are whether such content is an invasion of privacy or whether such content is defamatory, in this case, there would be an actual harm of one’s privacy rights. The court also seems to draw a line on whether an actual harm in one’s productivity would be a basis for recovery. Back in 2003, that court did not think so. However, in this technologically advancing world, we find ourselves it is unclear whether it will be reconsidered. Lawyers stress over the importance of the “billable hour.” Companies are constantly attempting to find ways in improving their productivity in an efficient way. Today, security breaches are more frequent than ever, and as a result, companies are urged under the law to invest in and employ reasonable cybersecurity practices. From this angle, it would seem as if the adage “time is money” has merit. In that case, perhaps common law should reflect that.

Critics might argue there should be no property interest in disrupted work productivity because human beings are not chattel. Rather, people should work to live, rather than live to work. But that argument seems to lose strength when applied to an interactive world where people are represented as avatars, in which a “separate personhood” is hard to establish. Furthermore, what determines the value of real and personal property within the metaverse is still being investigated. Upon analyzing the differences between cyberspace and the metaverse, legal scholars and practitioners may need to reconsider, if not expand upon, the application of law in Hamidi.

 

* Mark Edward Blankenship Jr. is a Senior Associate Attorney for the Ott Law Firm in St. Louis, Missouri. He received his LL.M. (Intellectual Property Law emphasis) at the Benjamin N. Cardozo School of Law at Yeshiva University in 2021, and his J.D. from the J. David Rosenberg College of Law at the University of Kentucky in 2019.

Source image: https://pixabay.com/vectors/metaverse-virtual-space-world-6786713/

Can AI Copyright Its Art?

By Mirae Heo

One of the things artists can do to protect their works is to federally register them with the US Copyright Office. Works that can be registered include literary works, musical works, graphical works, and even architectural works.[1] Congress purposely left the language of section 102(a) of the Copyright Act of 1976 to be very broad so that the statute did not bar future works from copyright protection because of updates in technology.[2] Does that mean that works created by artificial intelligence (AI) are copyrightable? The Copyright Office says no, but Dr. Stephen Thaler certainly tried to.

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By Nick Corn IV

 

I am an active Twitter user. One of my favorite accounts on Twitter is @BadLegalTakes. The basic gist of their account is that they post screenshots of users posting misinformed, yet often very self-assured, legal opinions. Recently, one of the screenshots featured a post that I thought was so downright ridiculously wrong that I couldn’t help but write a blog about it. I know what you’re thinking, “he isn’t really doing his blog about a dumb tweet is he?” Yes. Yes, I am.

On January 15, 2022, an NFT group by the name of Spice DAO announced on Twitter that they had won an auction for Director Alejandro Jodorowsky’s storyboard for a later cancelled 1974 film known as Dune.[1] This film, based on the 1965 book of the same name by Frank Herbert, was eventually produced under a different director in 1984 and re-made once again in 2021.[2] The 2021 iteration of the film has grossed over $400 million as of this writing.[3] Seeing the success of the 2021 film, Spice DAO saw what they thought was an opportunity to make a big splash when Jodorowsky’s storyboard went up for auction with world-renowned auction house Christie’s in November.[4] The piece was estimated to sell for anywhere between $29,000 and $40,000.[5] Spice DAO paid a whopping $3 million for the storyboard.[6] After their successful bid, Spice DAO pledged to “[m]ake the book public” and “[p]roduce an original animated limited series inspired by the book and sell it to a streaming service” among other things.[7] Essentially, Spice DAO had come to the conclusion that, because they bought the storyboard, they were now the owners both of the storyboard itself and the intellectual property rights to the storyboard.

Unfortunately for Spice DAO, the current copyright for Dune’s IP run through 2056.[8] Even more so, the book they bought will also be copyrighted until at least 2092 as an author, namely Jodorowsky himself, is still alive.[9] Just for kicks though, even if this was the correct method of copyright transfer, there are 10-20 other copies of the same storyboard in existence.[10] Not just that, but pages of the storyboard also already exist online. At the time of the purchase, an individual had already uploaded the contents of the book onto Google Photos.[11] While the link to it is no longer functional, presumably because the owner of the copyright became aware of it, there are still many images of pages that come up upon a quick Google search.

Undeterred, however, Spice DAO has continued to persist in their attempt to make some use of their massive overpayment. In a blog post released by Spice DAO, the group stated that they conducted a “whirlwind week of meetings” in which met with a producer who helped create the anime sequence in Quentin Tarantino’s “Kill Bill,” a writer for a Netflix series, an entertainment attorney employed by Canadian rapper Drake, and 3 Los Angeles based animation studios among others.[12] In an interview, Spice DAO tried to reframe the situation as everyone else simply misunderstood what the purpose for their purchase was for. According to Spice DAO, “while we do not own the IP to Frank Herbert’s masterpiece, we are uniquely positioned with the opportunity to create our own addition to the genre as an homage to the giants who came before us.”[13] This posits two questions to inquiring minds. Firstly, if they were simply going to create their own fanfiction based on the storyboard, why spend $3 million to buy pages they could have found online for free? Secondly, how exactly do they intend to create that fanfiction based on the storyboard, and then subsequently sell it for the creation of an animated series, without infringing upon the intellectual property? One writer was blocked by Spice DOA on Twitter after asking them that very question.[14] The answer however is that they can’t. As UK-based trademark attorney Kirsty Stewart wrote, “in order to produce or authorise derivative works such as an animated series, SpiceDOA would need to obtain licenses from the Herbert estate, as well as potentially Jodorowsky (and any other authors such as Michel Seydoux) if the adaptation was based on the Jodorowsky book. Similar to how buying a Batman comic does not give you the inherent rights to produce a new Batman film, the purchasing of this directors bible does not give SpiceDOA any intrinsic rights to produce new material.”[15]

At the end of the day, this is plainly an example of a group, caught up in a trend, taking drastic action without fully comprehending what they were doing. Their attempted backtracking is the equivalent of a teenager, upon being romantically turned down, stumbling through a “What? No, of course I wasn’t actually asking you out.” Unfortunately for Spice DOA, the world can recognize their $3 million embarrassment from a mile away.

 

[1] @TheSpiceDAO, Twitter (Jan. 15, 2022, 12:28 PM), https://twitter.com/TheSpiceDAO/status/1482404318347153413.

[2] Adrienne Westenfeld, The Crypto Bros Who Thought They Bought the Dune Rights Won’t Give Up, Esquire (Jan. 25, 2022), https://www.esquire.com/entertainment/books/a38815538/dune-crypto-nft-sale-mistake-explained/.

[3] Dune (2021), The Numbers, https://www.the-numbers.com/movie/Dune-(2020)#tab=summary (last visited Feb. 18, 2022).

[4] Westenfeld, supra note 2.

[5] Joyce Li, Rare 1970 ‘Dune’ Storyboard Set To Hit Christie’s Auction Block, HypeBeast (Nov. 3, 2021), https://hypebeast.com/2021/11/rare-1970-alejandro-jodorowsky-dune-storyboard-christies-auction-announcement.

[6] Spice DAO meets with Drake’s lawyer, still can’t fix $3M Dune blunder, Protos (Jan. 24, 2022), https://protos.com/spice-dao-dune-bible-blunder-drakes-lawyer-cant-fix/ [hereinafter Protos].

[7] @TheSpiceDAO, supra note 1.

[8] David Barnett, Jodorowsky animated Dune in development, says crypto group, The Guardian (Jan. 24, 2022, 7:43 AM), https://www.theguardian.com/film/2022/jan/24/dune-animation-based-on-jodorowsky-concept-art-in-development-says-cryptocurrency-group-spice-dao-frank-herbert.

[9] Id.

[10] Protos, supra note 6.

[11] Id.

[12] Spice DAO, Development on the Original Animation has begun!, Medium (Jan. 18, 2022), https://medium.com/@spicedao/development-on-the-original-animation-has-begun-7879d785d013.

[13] Christian Zilko, Crypto Investors Plot Animated Series Based on Jodorowsky’s ‘Dune’ Ideas — Without ‘Dune’ IP, IndieWire (Jan. 23, 2022, 2:30 PM), https://www.indiewire.com/2022/01/crypto-investors-dune-animated-series-no-ip-1234693130/.

[14] Barnett, supra note 8.

[15] Kirsty Stewart, Jodorowsky’s Dune, NFTs, and Copyright, Thorntons (Jan. 17, 2022), https://www.thorntons-law.co.uk/knowledge/jodorowskys-dune-nfts-and-copyright.

Image source: https://worldfamousdesignjunkies.com/new-blog/2014/7/4/jodorowskys-dune-a-collection-of-media

By Alexis Laundry

 

Last week, PJM Interconnection’s Planning Committee endorsed a transition plan that included a two-year delay on reviewing the majority of proposed projects in their interconnection request queue.[1] PJM is the nation’s largest regional grid operator, controlling electricity transmission activities across all or parts of Delaware, Illinois, Indiana, Kentucky, Maryland, Michigan, New Jersey, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia, and the District of Columbia.[2] Over the past several years, PJM has seen a drastic increase in interconnection requests for new generation projects, most from renewable sources like solar and wind, as demand for green electricity has grown in response to widespread passage of state Renewable Portfolio Standards and net-zero carbon goals.[3] The trend is expected to continue as the nation works towards meeting the Biden administration’s goal of a carbon-free electricity sector by 2035.[4] This increase in demand for interconnection approval has created a backlog in the queue, mostly due to the fact that the approval system is not meant to handle this volume of applications, which is delaying projects from being built by months and even years. It is a problem that must be resolved soon if the U.S. is going to meet the transition goals necessary to reduce carbon-emissions and mitigate the effects of climate change.

PJM is a regional transmission organization (RTO), which is a non-profit entity that coordinates the movement of electricity throughout a specific geographic region.[5] RTOs are responsible for operating the wholesale electricity market in their region and managing the high-voltage transmission grid to ensure reliable access to electricity for users.[6] This includes approving requests from new generation facilitates to connect into that transition network, which allows the electricity they produce to be delivered to end-users. The approval system was originally designed to accommodate the relatively few and far between requests for large-scale coal or natural gas plants to interconnect.[7] This process is slow and thorough, which worked fine when only a few big projects needed to be approved each year. However, the recent proliferation of smaller scale renewable energy projects being proposed across the region has overwhelmed the system. PJM recognized this problem and began taking steps late last year to create a plan for transitioning to a new approval process. The organization created the Interconnection Process Reform Task Force, which met for the first time in April 2021.[8] This task force created the proposed transition plan that was officially endorsed by the Planning Committee last week.[9] The transition plan creates a “fast track” approval process for projects currently in the queue that are the most ready for implementation, which amounts to about 450 of the ~2,500 projects currently languishing in the queue.[10] Another 1,200 would be prioritized for review starting in 2024.[11] The plan also includes a pause on new applications until 2025, which means many approvals wouldn’t be complete until 2027.[12] The ultimate result is a two-year pause on reviewing the majority of projects currently in the queue, which will delay getting over 100,000 MW of carbon-free electricity onto the grid by at least that long.[13] The plan is just a proposal at this time and still needs to be reviewed by additional PJM committees and ultimately approved by FERC, the federal agency responsible for regulating RTOs.[14] PJM plans to file with FERC in May and begin implementation late this year or early next year.[15]

What does this all mean for our nation’s climate action goals? On the one hand, many stakeholders are very supportive of the plan.[16] Representatives from major trade groups and public interest organizations have spoken in favor of the changes, seeing them as necessary and timely.[17] It’s obvious that something must be done to address the backlog for renewable projects, which is an issue replicated at many RTOs across the country. PJM is largely considered a bellwether for how RTOs operate, so approval of this plan would likely make it a model for other regions.[18] On the other hand, the two-year delay and new prioritization process will put many renewable project developers into tough financial positions, forcing them to delay work and ultimately revenue on projects as they await approval.[19] The delay will also have consequences on states’ ability to meet their renewable portfolio goals, many of which are statutorily mandated, as well as national goals. It seems unlikely that the U.S. will be able to get to 100% carbon-free electricity in just 13 years if new projects can’t come online quickly. At the end of the day, it will all depend on whether FERC approves this plan and how other regions respond to the same problem. Hopefully, other solutions will also arise that can help maintain the momentum for renewable development that we’ve seen over the past few years.

 

[1] PJM’s Planning Committee Widely Endorses PJM Transition Plan to New Interconnection Process, PJM Inside Lines (Feb. 9, 2022), https://insidelines.pjm.com/pjms-planning-committee-widely-endorses-pjm-transition-plan-to-new-interconnection-process/ [hereinafter PJM Transition Plan].

[2] Who We Are, PJM, https://www.pjm.com/about-pjm/who-we-are (last visited Feb. 11, 2022).

[3]  PJM Transition Plan, supra note 1.

[4] Exec. Order 14,008, 86 Fed. Reg. 7,619 (2021).

[5] Who We Are, supra note 2.

[6] Id.

[7] James Bruggers, Overwhelmed by Solar Projects, the Nation’s Largest Grid Operator Seeks a Two-Year Pause on Approvals, Inside Climate News (Feb. 2, 2022), https://insideclimatenews.org/news/02022022/pjm-solar-backlog-eastern-power-grid/?utm_source=Energy+News+Network+daily+email+digests&utm_campaign=715c70fbdc-EMAIL_CAMPAIGN_2020_05_11_11_36_COPY_01&utm_medium=email&utm_term=0_724b1f01f5-715c70fbdc-89303368.

[8] PJM Transition Plan, supra note 1.

[9] Id.

[10] Id.

[11] Bruggers, supra note 7.

[12] Id.

[13] PJM Transition Plan, supra note 1.

[14] Id.

[15] Id.

[16] Id. (stating that the plan was approved by 91% of the committee and was preferred over several alternatives).

[17] Bruggers, supra note 7.

[18] Id.

[19] Id.

Image source: https://www.rtoinsider.com/wp-content/uploads/PJM-Backbone-Transmission-System-PJM-web.jpg