Welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham. Here's what's shaking in IP land this week:

• Amazon.com and Williams-Sonoma ask judge to decide whether AI software can have volition.

• Recurring software license disputes set the stage for "gig law phenomenon."

• Who Got the Work Defending Against Richard Liebowitz? (Answer: Lots of law firms.)

As always, you can email me your feedback and follow me on Twitter.

 

Are Robots Immune From Copyright Infringement?

Ryan Abbott's book The Reasonable Robot: Artificial Intelligence and the Law is scheduled for release on June 26. In it, the UCLA and Surrey professor will argue for "AI legal neutrality"—the proposition that the law should not discriminate between humans and AI when they perform the same activities.

Coincidentally, we're going to be treated to a test of that thesis on the same day in the Northern District of California courtroom of U.S. Magistrate Judge Alex Tse. Williams-Sonoma and Amazon.com are asking him to decide whether a software program that helps choose images for a website falls within the safe harbor of the Digital Millennium Copyright Act.

I mentioned that this fight was brewing a couple months back. Williams-Sonoma alleges that Amazon has developed sophisticated software for evaluating images that are submitted by sellers for its Williams-Sonoma product pages. The software tends to choose copyrighted, professionally shot Williams-Sonoma photos, the company alleges. Amazon's software algorithms provide the "volition" required for direct copyright infringement, argues Williams-Sonoma, which is represented by an Orrick, Herrington & Sutcliffe team headed by partner Annette Hurst.

Amazon is represented by a Durie Tangri team headlined by partners Daralyn Durie and Mark Lemley. They moved to dismiss last month, arguing that even if Williams-Sonoma's allegations are taken as true, the DMCA's Section 512(c) safe harbor applies. "The operation of an algorithm that automatically displays photographs submitted for display by third parties is not volitional conduct as a matter of law," they argue.

The Ninth Circuit and other courts have repeatedly drawn distinctions between human choices and automated processes, the Durie Tangri lawyers argue. "In other words, a service provider can 'avoid liability'—at least for direct copyright infringement—by 'delegating [a] task to an algorithm instead of a human being,'" they write. "That distinction makes sense, because a company's human employees exercise judgment in a way an automated system cannot."

In opposition submitted Wednesday, Williams-Sonoma says Amazon is advocating for "bot immunity."

"The fact that content curation has been assigned to a software agent rather than a human agent does not permit Amazon to escape liability," Hurst argues.

She claims that Amazon employees call the software program Frankenstein for its ability to stitch together a web page. "Amazon was the Dr. Frankenstein publishing that monster, selecting and affirmatively determining each element displayed on the Peppermint Bark product detail page—including WSI's copyrighted photograph," Hurst writes.

All I can say is pass the popcorn on June 26.

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Art Beeman (left) and Joel Muchmore.

 

Introducing the Uber of Virtual Law Firms

Virtual law firms have become popular in the 2000s, but the formation of Beeman Muchmore this week feels like something new: a virtual firm combined with a microspecialty IP practice. In this case it's resolving licensing disputes over enterprise resource planning software.

"It's a gig law phenomenon," says Art Beeman, one of the firm's principals along with Joel Muchmore.

"Gig law" is not meant to demean or devalue the work, Beeman says. The stakes can be enormous when businesses and their software providers get crosswise over licenses. But the disputes tend to recur throughout the market, and Beeman and Muchmore have a lot of experience with them, including the only known instance of an ERP dispute that ended up in court.

"We came to appreciate what's going on in the market, and we believe we're responding to the market in the most effective way possible," Beeman says.

Beeman and Muchmore are IP veterans who practiced together at Crowell & Moring, Arent Fox, and SNR Dentons. Beeman has also logged stints at Jones Day, DLA Piper and other firms.

In 2015 the two filed a suit for the Mars food company against Oracle, seeking a declaration that Mars had complied with the audit provisions in its 1993 software licensing agreement, and an injunction preventing Oracle from terminating the license. The case settled a few months later.

"It got some attention, and before we knew it we were getting phone calls," Beeman says.

With their experience—and a database of how key license terms have been construed by vendors in other circumstances—Beeman says they can provide context, information and leverage, with the goal of "extricating" clients from the dispute.

"It's at the very least going to be a lot of fun," Beeman says. "The times, they are a-changin."

Caroline Wozniacki in 2008 (Blurry image by Scott Graham/ALM just to be safe.)

 

Who Got the Work?

Two years ago, Slate dubbed Richard Liebowitz a walking lawsuit factory. "He's also the best hope for photographers to get paid," the publication pointed out.

At the time Liebowitz, of Valley Stream, New York's Liebowitz Law Firm, had filed 600 copyright suits in the previous 2 ½ years on behalf of photographers whose photos were used on the web without permission. "Or, if you prefer, one lawsuit every single weekday," is how Slate put it at the time.

He's now on about triple that pace, having filed 795 suits last year, according to Lex Machina data, and on track for about the same number in 2020. Most settle within a few months of filing. Critics (and a couple of SDNY judges) call Liebowitz a copyright troll who's leveraging statutory damages; Liebowitz says he's providing a needed check against runaway theft from independent photographers.

In either event, Liebowitz's suits tend to draw high-end talent for defendants. I'm picking as a representative sample six suits the Liebowitz Law Firm filed earlier this year on behalf of Danish photographer Michael Boesen. When she announced her retirement from professional tennis this year, Caroline Wozniacki posted a photo that Boesen had taken to her Instagram account. The WTA Tour and five other sports and media companies republished the photo to their websites, allegedly without Boesen's permission. Three suits have settled. Sinclair Television is still litigating, though the parties report "productive settlement negotiations." United Sports, publisher of Long Island Tennis Magazine, and DiMoro Enterprises, publisher of SportsRantz, haven't responded to the complaints.

➤ For WTA Tour: Cooley partner Angela Dunning.

➤ For American Broadcasting Companies: Davis Wright Tremaine associate Jeremy Chase.

➤ For Sinclair Television Group: Davis Wright Tremaine partner James Rosenfeld and associate Kathleen Farley. ➤ For Associated Newspapers (U.S.A.) Ltd.: Ballard Spahr partner-elect Thomas Sullivan.

➤ For plaintiff Michael Barrett Boesen: Richard Liebowitz, Liebowitz Law Firm.

IP Lateral – Ballard Spahr

Speaking of Ballard Spahr, the firm announced this week that Jodi DeSchane has joined the firm's Minneapolis office as of counsel. DeSchane's practice centers around trademark, copyright, advertising, social media, and internet-related matters in a variety of industries. She previously practiced at Faegre Drinker Biddle & Reath.

"We're thrilled to have someone with Jodi's extensive experience join us," said Lynn Rzonca, chair of Ballard Spahr's IP department, in a written statement. "Thanks to her contributions, we can offer even greater depth of service and value to our clients."

Quick Hits

➤ In another sign of the Western District of Texas' growing influence on patent litigation, Winston & Strawn has launched WacoWatch, a blog about U.S. District Judge Alan Albright, his decisions and his procedures in patent cases. Partner Kathi Vidal heads up a team of Winston contributors.

➤ Kirkland & Ellis partners Dale Cendali, Josh Simmons and Shanti Sadtler Conway have been crowned The AmLaw Litigation Daily's Litigators of the Week. They get the honor for the defense of cutting-edge copyright infringement actions against Epic Games and Take-Two Interactive.

➤ Polsinelli has launched an IP venture with legal services provider UnitedLex and its 200 technologists, engineers and doctorates. My ALM colleague Dan Packel reports that together they are targeting clients in the tech sector, medical devices and the auto industry to help "rediscover" what's in their patent portfolios. As Packel notes, in an economic climate where many businesses are under severe pressure, there's great openness to new revenue streams, particularly when rooted in existing assets.

That's all from Skilled in the Art this week. I'll see you all again next Friday.