#copyfight

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Start with monopolies: tech companies are gigantic and they don't compete, they just take over whole sectors, either on their own on in cartels.

Google and Meta control the ad market. Google and Apple control the mobile market, and Google pays Apple more than $20 billion/year not to make a competing search engine, and of course, Google has a 90% Search market-share.

Now, you'd think that this was good news for the tech companies, owning their whole sector.

But it's actually a crisis. You see, when a company is growing, it is a "growth stock," and investors really like growth stocks. When you buy a share in a growth stock, you're making a bet that it will continue to grow. So growth stocks trade at a huge multiple of their earnings. This is called the "price to earnings ratio" or "P/E ratio."

But once a company stops growing, it is a "mature" stock, and it trades at a much lower P/E ratio. So for ever dollar that Target – a mature company – brings in, it is worth ten dollars. It has a P/E ratio of 10, while Amazon has a P/E ratio of 36, which means that for ever dollar Amazon brings in, the market values it at $36.

It's wonderful to run a company that's got a growth stock. Your shares are as good as money. If you want to buy another company, or hire a key worker, you can offer stock instead of cash. And stock is very easy for companies to get, because shares are manufactured right there on the premises, all you have to do is type some zeroes into a spreadsheet, while dollars are much harder to come by. A company can only get dollars from customers or creditors.

So when Amazon bids against Target for a key acquisition, or a key hire, Amazon can bid with shares they make by typing zeroes into a spreadsheet, and Target can only bid with dollars they get from selling stuff to us, or taking out loans. which is why Amazon generally wins those bidding wars.

That's the upside of having a growth stock. But here's the downside: eventually a company has to stop growing. Like, say you get a 90% market share in your sector, how are you gonna grow?

Once the market decides that you aren't a growth stock, once you become mature, your stocks are revalued, to a P/E ratio befitting a mature stock.

If you are an exec at a dominant company with a growth stock, you have to live in constant fear that the market will decide that you're not likely to grow any further. Think of what happened to Facebook in the first quarter of 2022. They told investors that they experienced slightly slower growth in the USA than they had anticipated, and investors panicked. They staged a one-day, $240B sell off. A quarter-trillion dollars in 24 hours! At the time, it was the largest, most precipitous drop in corporate valuation in human history.

That's a monopolist's worst nightmare, because once you're presiding over a "mature" firm, the key employees you've been compensating with stock, experience a precipitous pay-drop and bolt for the exits, so you lose the people who might help you grow again, and you can only hire their replacements with dollars. With dollars, not shares.

And the same goes for acquiring companies that might help you grow, because they, too, are going to expect money, not stock. This is the paradox of the growth stock. While you are growing to domination, the market loves you, but once you achieve dominance, the market lops 75% or more off your value in a single stroke if they don't trust your pricing power.

Which is why growth stock companies are always desperately pumping up one bubble or another, spending billions to hype the pivot to video, or cryptocurrency, or NFTs, or Metaverse, or AI.

I'm not saying that tech bosses are making bets they don't plan on winning. But I am saying that winning the bet – creating a viable metaverse – is the secondary goal. The primary goal is to keep the market convinced that your company will continue to grow, and to remain convinced until the next bubble comes along.

So this is why they're hyping AI: the material basis for the hundreds of billions in AI investment.

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Now I want to talk about how they're selling AI. The growth narrative of AI is that AI will disrupt labor markets. I use "disrupt" here in its most disreputable, tech bro sense

The promise of AI – the promise AI companies make to investors – is that there will be AIs that can do your job, and when your boss fires you and replaces you with AI, he will keep half of your salary for himself, and give the other half to the AI company.

That's it.

That's the $13T growth story that MorganStanley is telling. It's why big investors and institutionals are giving AI companies hundreds of billions of dollars. And because they are piling in, normies are also getting sucked in, risking their retirement savings and their family's financial security.

Now, if AI could do your job, this would still be a problem. We'd have to figure out what to do with all these technologically unemployed people.

But AI can't do your job. It can help you do your job, but that doesn't mean it's going to save anyone money. Take radiology: there's some evidence that AIs can sometimes identify solid-mass tumors that some radiologists miss, and look, I've got cancer. Thankfully, it's very treatable, but I've got an interest in radiology being as reliable and accurate as possible

If my Kaiser hospital bought some AI radiology tools and told its radiologists: "Hey folks, here's the deal. Today, you're processing about 100 x-rays per day. From now on, we're going to get an instantaneous second opinion from the AI, and if the AI thinks you've missed a tumor, we want you to go back and have another look, even if that means you're only processing 98 x-rays per day. That's fine, we just care about finding all those tumors."

If that's what they said, I'd be delighted. But no one is investing hundreds of billions in AI companies because they think AI will make radiology more expensive, not even if it that also makes radiology more accurate. The market's bet on AI is that an AI salesman will visit the CEO of Kaiser and make this pitch: "Look, you fire 9/10s of your radiologists, saving $20m/year, you give us $10m/year, and you net $10m/year, and the remaining radiologists' job will be to oversee the diagnoses the AI makes at superhuman speed, and somehow remain vigilant as they do so, despite the fact that the AI is usually right, except when it's catastrophically wrong.

"And if the AI misses a tumor, this will be the human radiologist's fault, because they are the 'human in the loop.' It's their signature on the diagnosis."

This is a reverse centaur, and it's a specific kind of reverse-centaur: it's what Dan Davies calles an "accountability sink." The radiologist's job isn't really to oversee the AI's work, it's to take the blame for the AI's mistakes.

This is another key to understanding – and thus deflating – the AI bubble. The AI can't do your job, but an AI salesman can convince your boss to fire you and replace you with an AI that can't do your job. This is key because it helps us build the kinds of coalitions that will be successful in the fight against the AI bubble.

If you're someone who's worried about cancer, and you're being told that the price of making radiology too cheap to meter, is that we're going to have to re-home America's 32,000 radiologists, with the trade-off that no one will every be denied radiology services again, you might say, "Well, OK, I'm sorry for those radiologists, and I fully support getting them job training or UBI or whatever. But the point of radiology is to fight cancer, not to pay radiologists, so I know what side I'm on."

AI hucksters and their customers in the C-suites want the public on their side. They want to forge a class alliance between AI deployers and the people who enjoy the fruits of the reverse centaurs' labor. They want us to think of ourselves as enemies to the workers.

Now, some people will be on the workers' side because of politics or aesthetics. They just like workers better than their bosses. But if you want to win over all the people who benefit from your labor, you need to understand and stress how the products of the AI will be substandard. That they are going to get charged more for worse things. That they have a shared material interest with you.

Will those products be substandard? There's every reason to think so. Earlier, I alluded to "automation blindness, "the physical impossibility of remaining vigilant for things that rarely occur. This is why TSA agents are incredibly good at spotting water bottles. Because they get a ton of practice at this, all day, every day. And why they fail to spot the guns and bombs that government red teams smuggle through checkpoints to see how well they work, because they just don't have any practice at that. Because, to a first approximation, no one deliberately brings a gun or a bomb through a TSA checkpoint.

Automation blindness is the Achilles' heel of "humans in the loop."

Think of AI software generation: there are plenty of coders who love using AI, and almost without exception, they are senior, experienced coders, who get to decide how they will use these tools. For example, you might ask the AI to generate a set of CSS files to faithfully render a web-page across multiple versions of multiple browsers. This is a notoriously fiddly thing to do, and it's pretty easy to verify if the code works – just eyeball it in a bunch of browsers. Or maybe the coder has a single data file they need to import and they don't want to write a whole utility to convert it.

Tasks like these can genuinely make coders more efficient and give them more time to do the fun part of coding, namely, solving really gnarly, abstract puzzles. But when you listen to business leaders talk about their AI plans for coders, it's clear they're not looking to make some centaurs.

They want to fire a lot of tech workers – 500,000 over the past three years – and make the rest pick up their work with coding, which is only possible if you let the AI do all the gnarly, creative problem solving, and then you do the most boring, soul-crushing part of the job: reviewing the AIs' code.

And because AI is just a word guessing program, because all it does is calculate the most probable word to go next, the errors it makes are especially subtle and hard to spot, because these bugs are literally statistically indistinguishable from working code (except that they're bugs).

Here's an example: code libraries are standard utilities that programmers can incorporate into their apps, so they don't have to do a bunch of repetitive programming. Like, if you want to process some text, you'll use a standard library. If it's an HTML file, that library might be called something like lib.html.text.parsing; and if it's a DOCX file, it'll be lib.docx.text.parsing. But reality is messy, humans are inattentive and stuff goes wrong, so sometimes, there's another library, this one for parsing PDFs, and instead of being called lib.pdf.text.parsing, it's called lib.text.pdf.parsing.

Now, because the AI is a statistical inference engine, because all it can do is predict what word will come next based on all the words that have been typed in the past, it will "hallucinate" a library called lib.pdf.text.parsing. And the thing is, malicious hackers know that the AI will make this error, so they will go out and create a library with the predictable, hallucinated name, and that library will get automatically sucked into your program, and it will do things like steal user data or try and penetrate other computers on the same network.

And you, the human in the loop – the reverse centaur – you have to spot this subtle, hard to find error, this bug that is literally statistically indistinguishable from correct code. Now, maybe a senior coder could catch this, because they've been around the block a few times, and they know about this tripwire.

But guess who tech bosses want to preferentially fire and replace with AI? Senior coders. Those mouthy, entitled, extremely highly paid workers, who don't think of themselves as workers. Who see themselves as founders in waiting, peers of the company's top management. The kind of coder who'd lead a walkout over the company building drone-targeting systems for the Pentagon, which cost Google ten billion dollars in 2018.

For AI to be valuable, it has to replace high-wage workers, and those are precisely the experienced workers, with process knowledge, and hard0won intuition, who might spot some of those statistically camouflaged AI errors.

Like I said, the point here is to replace high-waged workers

And one of the reasons the AI companies are so anxious to fire coders is that coders are the princes of labor. They're the most consistently privileged, sought-after, and well-compensated workers in the labor force.

If you can replace coders with AI, who cant you replace with AI? Firing coders is an ad for AI.

Which brings me to AI art. AI art – or "art" – is also an ad for AI, but it's not part of AI's business model.

Let me explain: on average, illustrators don't make any money. They are already one of the most immiserated, precartized groups of workers out there. They suffer from a pathology called "vocational awe." That's a term coined by the librarian Fobazi Ettarh, and it refers to workers who are vulnerable to workplace exploitation because they actually care about their jobs – nurses, librarians, teachers, and artists.

If AI image generators put every illustrator working today out of a job, the resulting wage-bill savings would be undetectable as a proportion of all the costs associated with training and operating image-generators. The total wage bill for commercial illustrators is less than the kombucha bill for the company cafeteria at just one of Open AI's campuses.

The purpose of AI art – and the story of AI art as a death-knell for artists – is to convince the broad public that AI is amazing and will do amazing things. It's to create buzz. Which is not to say that it's not disgusting that former OpenAI CTO Mira Murati told a conference audience that "some creative jobs shouldn't have been there in the first place," and that it's not especially disgusting that she and her colleagues boast about using the work of artists to ruin those artists' livelihoods.

It's supposed to be disgusting. It's supposed to get artists to run around and say, "The AI can do my job, and it's going to steal my job, and isn't that terrible?"

Because the customers for AI – corporate bosses – don't see AI taking workers' jobs as terrible. They see it as wonderful.

But can AI do an illustrator's job? Or any artist's job?

Let's think about that for a second. I've been a working artist since I was 17 years old, when I sold my first short story, and I've given it a lot of thought, and here's what I think art is: it starts with an artist, who has some vast, complex, numinous, irreducible feeling in their mind. And the artist infuses that feeling into some artistic medium. They make a song, or a poem, or a painting, or a drawing, or a dance, or a book, or a photograph. And the idea is, when you experience this work, a facsimile of the big, numinous, irreducible feeling will materialize in your mind.

Now that I've defined art, we have to go on a little detour.

I have a friend who's a law professor, and before the rise of chatbots, law students knew better than to ask for reference letters from their profs, unless they were a really good student. Because those letters were a pain in the ass to write. So if you advertised for a postdoc and you heard from a candidate with a reference letter from a respected prof, the mere existence of that letter told you that the prof really thought highly of that student.

But then we got chatbots, and everyone knows that you generate a reference letter by feeding three bullet points to an LLM, and it'll barf up five paragraphs of florid nonsense about the student.

So when my friend advertises for a postdoc, they are flooded with reference letters, and they deal with this flood by feeding all these letters to another chatbot, and ask it to reduce them back to three bullet points. Now, obviously, they won't be the same bullet-points, which makes this whole thing terrible.

But just as obviously, nothing in that five-paragraph letter except the original three bullet points are relevant to the student. The chatbot doesn't know the student. It doesn't know anything about them. It cannot add a single true or useful statement about the student to the letter.

What does this have to do with AI art? Art is a transfer of a big, numinous, irreducible feeling from an artist to someone else. But the image-gen program doesn't know anything about your big, numinous, irreducible feeling. The only thing it knows is whatever you put into your prompt, and those few sentences are diluted across a million pixels or a hundred thousand words, so that the average communicative density of the resulting work is indistinguishable from zero.

It's possible to infuse more communicative intent into a work: writing more detailed prompts, or doing the selective work of choosing from among many variants, or directly tinkering with the AI image after the fact, with a paintbrush or Photoshop or The Gimp. And if there will every be a piece of AI art that is good art – as opposed to merely striking, or interesting, or an example of good draftsmanship – it will be thanks to those additional infusions of creative intent by a human.

And in the meantime, it's bad art. It's bad art in the sense of being "eerie," the word Mark Fisher uses to describe "when there is something present where there should be nothing, or is there is nothing present when there should be something."

AI art is eerie because it seems like there is an intender and an intention behind every word and every pixel, because we have a lifetime of experience that tells us that paintings have painters, and writing has writers. But it's missing something. It has nothing to say, or whatever it has to say is so diluted that it's undetectable.

The images were striking before we figured out the trick, but now they're just like the images we imagine in clouds or piles of leaves. We're the ones drawing a frame around part of the scene, we're the ones focusing on some contours and ignoring the others. We're looking at an inkblot, and it's not telling us anything.

Sometimes that can be visually arresting, and to the extent that it amuses people in a community of prompters and viewers, that's harmless.

I know someone who plays a weekly Dungeons and Dragons game over Zoom. It's transcribed by an open source model running locally on the dungeon master's computer, which summarizes the night's session and prompts an image generator to create illustrations of key moments. These summaries and images are hilarious because they're full of errors. It's a bit of harmless fun, and it bring a small amount of additional pleasure to a small group of people. No one is going to fire an illustrator because D&D players are image-genning funny illustrations where seven-fingered paladins wrestle with orcs that have an extra hand.

But bosses have and will fire illustrators, because they fantasize about being able to dispense with creative professionals and just prompt an AI. Because even though the AI can't do the illustrator's job, an AI salesman can convince the illustrator's boss to fire them and replace them with an AI that can't do their job.

This is a disgusting and terrible juncture, and we should not simply shrug our shoulders and accept Thatcherism's fatalism: "There is no alternative."

So what is the alternative? A lot of artists and their allies think they have an answer: they say we should extend copyright to cover the activities associated with training a model.

And I'm here to tell you they are wrong:w rong because this would inflict terrible collateral damage on socially beneficial activities, and it would represent a massive expansion of copyright over activities that are currently permitted – for good reason!.

Let's break down the steps in AI training.

First, you scrape a bunch of web-pages This is unambiguously legal under present copyright law. You do not need a license to make a transient copy of a copyrighted work in order to analyze it, otherwise search engines would be illegal. Ban scraping and Google will be the last search engine we ever get, the Internet Archive will go out of business, that guy in Austria who scraped all the grocery store sites and proved that the big chains were colluding to rig prices would be in deep trouble.

Next, you perform analysis on those works. Basically, you count stuff on them: count pixels and their colors and proximity to other pixels; or count words. This is obviously not something you need a license for. It's just not illegal to count the elements of a copyrighted work. And we really don't want it to be, not if you're interested in scholarship of any kind.

And it's important to note that counting things is legal, even if you're working from an illegally obtained copy. Like, if you go to the flea market, and you buy a bootleg music CD, and you take it home and you make a list of all the adverbs in the lyrics, and you publish that list, you are not infringing copyright by doing so.

Perhaps you've infringed copyright by getting the pirated CD, but not by counting the lyrics.

This is why Anthropic offered a $1.5b settlement for training its models based on a ton of books it downloaded from a pirate site: not because counting the words in the books infringes anyone's rights, but because they were worried that they were going to get hit with $150k/book statutory damages for downloading the files.

OK, after you count all the pixels or the words, it's time for the final step: publishing them. Because that's what a model is: a literary work (that is, a piece of software) that embodies a bunch of facts about a bunch of other works, word and pixel distribution information, encoded in a multidimensional array.

And again, copyright absolutely does not prohibit you from publishing facts about copyrighted works. And again, no one should want to live in a world where someone else gets to decide which truthful, factual statements you can publish.

But hey, maybe you think this is all sophistry. Maybe you think I'm full of shit. That's fine. It wouldn't be the first time someone thought that.

After all, even if I'm right about how copyright works now, there's no reason we couldn't change copyright to ban training activities, and maybe there's even a clever way to wordsmith the law so that it only catches bad things we don't like, and not all the good stuff that comes from scraping, analyzing and publishing.

Well, even then, you're not gonna help out creators by creating this new copyright. If you're thinking that you can, you need to grapple with this fact: we have monotonically expanded copyright since 1976, so that today, copyright covers more kinds of works, grants exclusive rights over more uses, and lasts longer.

And today, the media industry is larger and more profitable than it has ever been, and also: the share of media industry income that goes to creative workers is lower than its ever been, both in real terms, and as a proportion of those incredible gains made by creators' bosses at the media company.

So how it is that we have given all these new rights to creators, and those new rights have generated untold billions, and left creators poorer? It's because in a creative market dominated by five publishers, four studios, three labels, two mobile app stores, and a single company that controls all the ebooks and audiobooks, giving a creative worker extra rights to bargain with is like giving your bullied kid more lunch money.

It doesn't matter how much lunch money you give the kid, the bullies will take it all. Give that kid enough money and the bullies will hire an agency to run a global campaign proclaiming "think of the hungry kids! Give them more lunch money!"

Creative workers who cheer on lawsuits by the big studios and labels need to remember the first rule of class warfare: things that are good for your boss are rarely what's good for you.

The day Disney and Universal filed suit against Midjourney, I got a press release from the RIAA, which represents Disney and Universal through their recording arms. Universal is the largest label in the world. Together with Sony and Warner, they control 70% of all music recordings in copyright today.

It starts: "There is a clear path forward through partnerships that both further AI innovation and foster human artistry."

It ends: "This action by Disney and Universal represents a critical stand for human creativity and responsible innovation."

And it's signed by Mitch Glazier, CEO of the RIAA.

It's very likely that name doesn't mean anything to you. But let me tell you who Mitch Glazier is. Today, Mitch Glazier is the CEO if the RIAA, with an annual salary of $1.3m. But until 1999, Mitch Glazier was a key Congressional staffer, and in 1999, Glazier snuck an amendment into an unrelated bill, the Satellite Home Viewer Improvement Act, that killed musicians' right to take their recordings back from their labels.

This is a practice that had been especially important to "heritage acts" (which is a record industry euphemism for "old music recorded by Black people"), for whom this right represented the difference between making rent and ending up on the street.

When it became clear that Glazier had pulled this musician-impoverishing scam, there was so much public outcry, that Congress actually came back for a special session, just to vote again to cancel Glazier's amendment. And then Glazier was kicked out of his cushy Congressional job, whereupon the RIAA started paying more than $1m/year to "represent the music industry."

This is the guy who signed that press release in my inbox. And his message was: The problem isn't that Midjourney wants to train a Gen AI model on copyrighted works, and then use that model to put artists on the breadline. The problem is that Midjourney didn't pay RIAA members Universal and Disney for permission to train a model. Because if only Midjourney had given Disney and Universal several million dollars for training right to their catalogs, the companies would have happily allowed them to train to their heart's content, and they would have bought the resulting models, and fired as many creative professionals as they could.

I mean, have we already forgotten the Hollywood strikes? I sure haven't. I live in Burbank, home to Disney, Universal and Warner, and I was out on the line with my comrades from the Writers Guild, offering solidarity on behalf of my union, IATSE 830, The Animation Guild, where I'm a member of the writers' unit.

And I'll never forget when one writer turned to me and said, "You know, you prompt an LLM exactly the same way an exec gives shitty notes to a writers' room. You know: 'Make me ET, except it's about a dog, and put a love interest in there, and a car chase in the second act.' The difference is, you say that to a writers' room and they all make fun of you and call you a fucking idiot suit. But you say it to an LLM and it will cheerfully shit out a terrible script that conforms exactly to that spec (you know, Air Bud)."

These companies are desperate to use AI to displace workers. When Getty Images sues AI companies, it's not representing the interests of photographers. Getty hates paying photographers! Getty just wants to get paid for the training run, and they want the resulting AI model to have guardrails, so it will refuse to create images that compete with Getty's images for anyone except Getty. But Getty will absolutely use its models to bankrupt as many photographers as it possibly can.

A new copyright to train models won't get us a world where models aren't used to destroy artists, it'll just get us a world where the standard contracts of the handful of companies that control all creative labor markets are updated to require us to hand over those new training rights to those companies. Demanding a new copyright just makes you a useful idiot for your boss, a human shield they can brandish in policy fights, a tissue-thin pretense of "won't someone think of the hungry artists?"

When really what they're demanding is a world where 30% of the investment capital of the AI companies go into their shareholders' pockets. When an artist is being devoured by rapacious monopolies, does it matter how they divvy up the meal?

We need to protect artists from AI predation, not just create a new way for artists to be mad about their impoverishment.

And incredibly enough, there's a really simple way to do that. After 20+ years of being consistently wrong and terrible for artists' rights, the US Copyright Office has finally done something gloriously, wonderfully right. All through this AI bubble, the Copyright Office has maintained – correctly – that AI-generated works cannot be copyrighted, because copyright is exclusively for humans. That's why the "monkey selfie" is in the public domain. Copyright is only awarded to works of human creative expression that are fixed in a tangible medium.

And not only has the Copyright Office taken this position, they've defended it vigorously in court, repeatedly winning judgments to uphold this principle.

The fact that every AI created work is in the public domain means that if Getty or Disney or Universal or Hearst newspapers use AI to generate works – then anyone else can take those works, copy them, sell them, or give them away for free. And the only thing those companies hate more than paying creative workers, is having other people take their stuff without permission.

The US Copyright Office's position means that the only way these companies can get a copyright is to pay humans to do creative work. This is a recipe for centaurhood. If you're a visual artist or writer who uses prompts to come up with ideas or variations, that's no problem, because the ultimate work comes from you. And if you're a video editor who uses deepfakes to change the eyelines of 200 extras in a crowd-scene, then sure, those eyeballs are in the public domain, but the movie stays copyrighted.

But creative workers don't have to rely on the US government to rescue us from AI predators. We can do it ourselves, the way the writers did in their historic writers' strike. The writers brought the studios to their knees. They did it because they are organized and solidaristic, but also are allowed to do something that virtually no other workers are allowed to do: they can engage in "sectoral bargaining," whereby all the workers in a sector can negotiate a contract with every employer in the sector.

That's been illegal for most workers since the late 1940s, when the Taft-Hartley Act outlawed it. If we are gonna campaign to get a new law passed in hopes of making more money and having more control over our labor, we should campaign to restore sectoral bargaining, not to expand copyright.

Our allies in a campaign to expand copyright are our bosses, who have never had our best interests at heart. While our allies in the fight for sector bargaining are every worker in the country. As the song goes, "Which side are you on?"

OK, I need to bring this talk in for a landing now, because I'm out of time, so I'm going to close out with this: AI is a bubble and bubbles are terrible.

Bubbles transfer the life's savings of normal people who are just trying to have a dignified retirement to the wealthiest and most unethical people in our society, and every bubble eventually bursts, taking their savings with it.

But not every bubble is created equal. Some bubbles leave behind something productive. Worldcom stole billions from everyday people by defrauding them about orders for fiber optic cables. The CEO went to prison and died there. But the fiber outlived him. It's still in the ground. At my home, I've got 2gb symmetrical fiber, because AT&T lit up some of that old Worldcom dark fiber.

All things being equal, it would have been better if Worldcom hadn't ever existed, but the only thing worse than Worldcom committing all that ghastly fraud would be if there was nothing to salvage from the wreckage.

I don't think we'll salvage much from cryptocurrency, for example. Sure, there'll be a few coders who've learned something about secure programming in Rust. But when crypto dies, what it will leave behind is bad Austrian economics and worse monkey JPEGs.

AI is a bubble and it will burst. Most of the companies will fail. Most of the data-centers will be shuttered or sold for parts. So what will be left behind?

We'll have a bunch of coders who are really good at applied statistics. We'll have a lot of cheap GPUs, which'll be good news for, say, effects artists and climate scientists, who'll be able to buy that critical hardware at pennies on the dollar. And we'll have the open source models that run on commodity hardware, AI tools that can do a lot of useful stuff, like transcribing audio and video, describing images, summarizing documents, automating a lot of labor-intensive graphic editing, like removing backgrounds, or airbrushing passersby out of photos. These will run on our laptops and phones, and open source hackers will find ways to push them to do things their makers never dreamt of.

If there had never been an AI bubble, if all this stuff arose merely because computer scientists and product managers noodled around for a few year coming up with cool new apps for back-propagation, machine learning and generative adversarial networks, most people would have been pleasantly surprised with these interesting new things their computers could do. We'd call them "plugins."

It's the bubble that sucks, not these applications. The bubble doesn't want cheap useful things. It wants expensive, "disruptive" things: Big foundation models that lose billions of dollars every year.

When the AI investment mania halts, most of those models are going to disappear, because it just won't be economical to keep the data-centers running. As Stein's Law has it: "Anything that can't go on forever eventually stops."

The collapse of the AI bubble is going to be ugly. Seven AI companies currently account for more than a third of the stock market, and they endlessly pass around the same $100b IOU.

Bosses are mass-firing productive workers and replacing them with janky AI, and when the janky AI is gone, no one will be able to find and re-hire most of those workers, we're going to go from disfunctional AI systems to nothing.

AI is the asbestos in the walls of our technological society, stuffed there with wild abandon by a finance sector and tech monopolists run amok. We will be excavating it for a generation or more.

So we need to get rid of this bubble. Pop it, as quickly as we can. To do that, we have to focus on the material factors driving the bubble. The bubble isn't being driven by deepfake porn, oOr election disinformation, or AI image-gen, or slop advertising.

All that stuff is terrible and harmful, but it's not driving investment. The total dollar figure represented by these apps doesn't come close to making a dent in the capital expenditures and operating costs of AI. They are peripheral, residual uses: flashy, but unimportant to the bubble.

Get rid of all those uses and you reduce the expected income of AI companies by a sum so small it rounds to zero.

Same goes for all that "AI Safety" nonsense, that purports to concern itself with preventing an AI from attaining sentience and turning us all into paperclips. First of all, this is facially absurd. Throwing more words and GPUs into the word-guessing program won't make it sentient. That's like saying, "Well, we keep breeding these horses to run faster and faster, so it's only a matter of time until one of our mares gives birth to a locomotive." A human mind is not a word-guessing program with a lot of extra words.

I'm here for science fiction thought experiments, don't get me wrong. But also, don't mistake sf for prophesy. SF stories about superintelligence are futuristic parables, not business plans, roadmaps, or predictions.

The AI Safety people say they are worried that AI is going to end the world, but AI bosses love these weirdos. Because on the one hand, if AI is powerful enough to destroy the world, think of how much money it can make! And on the other hand, no AI business plan has a line on its revenue projections spreadsheet labeled "Income from turning the human race into paperclips." So even if we ban AI companies from doing this, we won't cost them a dime in investment capital.

To pop the bubble, we have to hammer on the forces that created the bubble: the myth that AI can do your job, especially if you get high wages that your boss can claw back; the understanding that growth companies need a succession of ever-more-outlandish bubbles to stay alive; the fact that workers and the public they serve are on one side of this fight, and bosses and their investors are on the other side.

Because the AI bubble really is very bad news, it's worth fighting seriously, and a serious fight against AI strikes at its roots: the material factors fueling the hundreds of billions in wasted capital that are being spent to put us all on the breadline and fill all our walls will high-tech asbestos.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2025/12/05/pop-that-bubble/#u-washington

Image: Cryteria (modified) https://commons.wikimedia.org/wiki/File:HAL9000.svg

This is an argument that Rebecca Giblin and I develop in our 2022 book Chokepoint Capitalism: How Big Tech and Big Content Captured Creative Labor Markets and How We'll Win Them Back:

https://www.beacon.org/Chokepoint-Capitalism-P1856.aspx

Rebecca is a law professor who is, among other things, one of the world's leading experts on Termination of Transfer, who co-authored the definitive study on the use of Termination since the 1976 Copyright Act, and the many ways this has benefited creators at the expense of media companies:

https://pluralistic.net/2021/09/26/take-it-back/

Remember, Termination is one of the only copyright policies that solely benefits creative workers. Under Termination, a media company can force you to sign away your rights in perpetuity, but you can still claim those rights back after 35 years. Termination isn't just something to bargain away, it's a new power to bargain with.

The history of how Termination got into the 1976 Copyright Act is pretty gnarly. The original text of the Termination clause made Termination automatic, after 25 years. That would have meant that every quarter century, every media company would have to go hat in hand to every creative worker whose work was still selling and beg them to sign a new contract. If your original contract stank (say, because you were just starting your career), you could demand back-payment to make up for the shitty deal you'd been forced into, and if your publisher/label/studio wouldn't cough up, you could take your work somewhere else and bargain from a position of strength, because you'd be selling a sure thing – a work that was still commercially viable after 25 years!

Automatic termination would also solve the absentee landlord problem, where a media company was squatting on your rights, keeping your book or album in print (or these days, online), but doing nothing to promote them and refusing to return the rights to you so you could sell them to some who saw the potential in your old works.

Naturally, the media industry hated this, so they watered down Termination. Instead of applying after 25 years, it now applies after 35 years. Instead of being automatic, it now requires requires creators to go through red tape at the Copyright Office.

But that wasn't enough for the media companies. In 1999, an obscure Congressional staffer named Mitch Glazier slipped a rider into the Satellite Home Viewer Improvement Act that ended Termination of Transfer for musicians. Musicians really need Termination, since record deals were and are so unconscionable and one-sided. The bill passed without anyone noticing:

https://www.wired.com/2000/08/rule-reversal-blame-it-on-riaa/

Musicians got really pissed about this, and so did Congress, who'd been hoodwinked by this despicable pismire. Congress actually convened a special session just to delete Glazier's amendment, and Glazier left his government job under a cloud.

But Glazier wasn't unemployed for long. Within three months, he'd been installed as the CEO of the Recording Industry Association of America, a job he has held ever since, where he makes over $1.3 million/year:

https://projects.propublica.org/nonprofits/organizations/131669037

I recently got a press release signed by Glazier, supporting Disney and Universal's copyright suit against Midjourney, in which begins, "There is a clear path forward through partnerships":

https://www.riaa.com/riaa-statement-on-midjourney-ai-litigation/

In other words, Glazier doesn't want these lawsuits to get rid of Midjourney and protect creative workers from the threat of AI – he just wants the AI companies to pay the media companies to make the products that his clients will use to destroy creators' livelihoods. He wants there to be a new copyright that allows creators to decide whether their work can be used to train AI models, and then he wants that right transferred to media companies who will sell to to AI companies in a bid to stop paying artists:

https://pluralistic.net/2024/10/19/gander-sauce/#just-because-youre-on-their-side-it-doesnt-mean-theyre-on-your-side

US Copyright has always acknowledged the tension between creators' rights and the rights of publishers, studios, labels and other media companies that buy creators' works. The original US copyright lasted for 14 years, and could be renewed for another 14 years, but only by the creator (not by the publisher). This meant that if a work was still selling after 14 years, the publisher would have to convince the writer to renew the copyright, or the work would go into the public domain.

This was in an era in which writers were typically paid a flat fee for their work, so from a writer's perspective, it didn't matter if the publisher made any money from subsequent sales of their books, or whether the book entered the public domain so that anyone could sell it. The writer made the same amount either way: zero.

Copyright's original 14 year renewal was a way for creative labor markets to look back and address historic injustices. If your publisher underpaid you 14 years ago, you could demand that they make good on their moral obligation to you, and if they refused, you could punish them by putting the work into the public domain.

Termination has been a huge boon to artists of all description from Stephen King to Ann M Martin, creator of The Babysitters' Club. One of my favorite examples is funk legend George Clinton, whose shitweasel manager forged his signature on a contract and stole his royalties for decades (the reason Clinton is still touring isn't merely that he's an unstoppable funk god, but because he's broke). Clinton eventually gave up on suing his ex-manager and instead just filed for Termination of Transfer:

https://www.billboard.com/pro/george-clinton-lawsuit-ex-agent-music-rights/

If that sounds familiar, it may be because I used it as the basis for a subplot in my novel The Bezzle:

https://us.macmillan.com/books/9781250865878/thebezzle/

Back to Roger Rabbit. Author Gary K Wolf has successfully filed for Termination of Transfer, meaning he's recovered the rights to Roger Rabbit and the other characters from his novel:

https://www.imnotbad.com/2025/11/roger-rabbit-copyright-reverts-to.html

He discusses his plans for a sequel starring Jessica Rabbit in this interview with "I'm Not Bad TV":

https://www.youtube.com/watch?v=L_0lUiplxZk

Writing about the termination for Boing Boing, Ruben Bolling wonders what this means for things like the Roger Rabbit ride at Disneyland, and the ongoing distribution of the film:

https://boingboing.net/2025/11/17/disney-loses-the-rights-to-roger-rabbit-characters-as-they-revert-to-original-author-of-novel.html

It's not clear to me what the answer is but my guess is that Disney will have to offer Wolf enough money that he agrees to keep the film in distribution and the ride running. Which is the point: when you sell your work for film adaptation, no one know if it's going to be a dud or a classic. Termination is copyright's lookback, a way to renegotiate the deal once you've gotten the leverage that comes from success.

If you have a work you signed away the copyright for 35 years or more ago, here is a tool from Creative Commons and the Authors Alliance for terminating the transfer and getting your rights back (disclosure: I am an unpaid member of the Authors Alliance advisory board):

https://rightsback.org/

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2025/11/17/stop-killing-games-again/#object-transience

Image: Ken Lund (modified) https://www.flickr.com/photos/kenlund/16775732643/

But I was right. The ability to change features, prices, and availability of things you've already paid for is a powerful temptation to corporations. Inkjet printers were always a sleazy business, but once these printers got directly connected to the internet, companies like HP started pushing out "security updates" that modified your printer to make it reject the third-party ink you'd paid for:

https://www.eff.org/deeplinks/2020/11/ink-stained-wretches-battle-soul-digital-freedom-taking-place-inside-your-printer

Now, this scam wouldn't work if you could just put things back the way they were before the "update," which is where the DRM comes in. A thicket of IP laws make reverse-engineering DRM-encumbered products into a felony. Combine always-on network access with indiscriminate criminalization of user modification, and the enshittification will follow, as surely as night follows day.

This is the root of all the right to repair shenanigans. Sure, companies withhold access to diagnostic codes and parts, but codes can be extracted and parts can be cloned. The real teeth in blocking repair comes from the law, not the tech. The company that makes McDonald's wildly unreliable McFlurry machines makes a fortune charging franchisees to fix these eternally broken appliances. When a third party threatened this racket by reverse-engineering the DRM that blocked independent repair, they got buried in legal threats:

https://pluralistic.net/2021/04/20/euthanize-rentier-enablers/#cold-war

Everybody loves this racket. In Poland, a team of security researchers at the OhMyHack conference just presented their teardown of the anti-repair features in NEWAG Impuls locomotives. NEWAG boobytrapped their trains to try and detect if they've been independently serviced, and to respond to any unauthorized repairs by bricking themselves:

https://mamot.fr/@[email protected]/111528162905209453

Poland is part of the EU, meaning that they are required to uphold the provisions of the 2001 EU Copyright Directive, including Article 6, which bans this kind of reverse-engineering. The researchers are planning to present their work again at the Chaos Communications Congress in Hamburg this month – Germany is also a party to the EUCD. The threat to researchers from presenting this work is real – but so is the threat to conferences that host them:

https://www.cnet.com/tech/services-and-software/researchers-face-legal-threats-over-sdmi-hack/

20 years ago, Chris Anderson told me that it was unrealistic to expect tech companies to refuse demands for DRM from the entertainment companies whose media they hoped to play. My argument – then and now – was that any tech company that sells you a gadget that can have its features revoked is defrauding you. You're paying for x, y and z – and if they are contractually required to remove x and y on demand, they are selling you something that you can't rely on, without making that clear to you.

But it's worse than that. When a tech company designs a device for remote, irreversible, nonconsensual downgrades, they invite both external and internal parties to demand those downgrades. Like Pavel Chekov says, a phaser on the bridge in Act I is going to go off by Act III. Selling a product that can be remotely, irreversibly, nonconsensually downgraded inevitably results in the worst person at the product-planning meeting proposing to do so. The fact that there are no penalties for doing so makes it impossible for the better people in that meeting to win the ensuing argument, leading to the moral injury of seeing a product you care about reduced to a pile of shit:

https://pluralistic.net/2023/11/25/moral-injury/#enshittification

But even if everyone at that table is a swell egg who wouldn't dream of enshittifying the product, the existence of a remote, irreversible, nonconsensual downgrade feature makes the product vulnerable to external actors who will demand that it be used. Back in 2022, Adobe informed its customers that it had lost its deal to include Pantone colors in Photoshop, Illustrator and other "software as a service" packages. As a result, users would now have to start paying a monthly fee to see their own, completed images. Fail to pay the fee and all the Pantone-coded pixels in your artwork would just show up as black:

https://pluralistic.net/2022/10/28/fade-to-black/#trust-the-process

Adobe blamed this on Pantone, and there was lots of speculation about what had happened. Had Pantone jacked up its price to Adobe, so Adobe passed the price on to its users in the hopes of embarrassing Pantone? Who knows? Who can know? That's the point: you invested in Photoshop, you spent money and time creating images with it, but you have no way to know whether or how you'll be able to access those images in the future. Those terms can change at any time, and if you don't like it, you can go fuck yourself.

These companies are all run by CEOs who got their MBAs at Darth Vader University, where the first lesson is "I have altered the deal, pray I don't alter it further." Adobe chose to design its software so it would be vulnerable to this kind of demand, and then its customers paid for that choice. Sure, Pantone are dicks, but this is Adobe's fault. They stuck a KICK ME sign to your back, and Pantone obliged.

This keeps happening and it's gonna keep happening. Last week, Playstation owners who'd bought (or "bought") Warner TV shows got messages telling them that Warner had walked away from its deal to sell videos through the Playstation store, and so all the videos they'd paid for were going to be deleted forever. They wouldn't even get refunds (to be clear, refunds would also be bullshit – when I was a bookseller, I didn't get to break into your house and steal the books I'd sold you, not even if I left some cash on your kitchen table).

Sure, Warner is an unbelievably shitty company run by the single most guillotineable executive in all of Southern California, the loathsome David Zaslav, who oversaw the merger of Warner with Discovery. Zaslav is the creep who figured out that he could make more money cancelling completed movies and TV shows and taking a tax writeoff than he stood to make by releasing them:

https://aftermath.site/there-is-no-piracy-without-ownership

Imagine putting years of your life into making a program – showing up on set at 5AM and leaving your kids to get their own breakfast, performing stunts that could maim or kill you, working 16-hour days during the acute phase of the covid pandemic and driving home in the night, only to have this absolute turd of a man delete the program before anyone could see it, forever, to get a minor tax advantage. Talk about moral injury!

But without Sony's complicity in designing a remote, irreversible, nonconsensual downgrade feature into the Playstation, Zaslav's war on art and creative workers would be limited to material that hadn't been released yet. Thanks to Sony's awful choices, David Zaslav can break into your house, steal your movies – and he doesn't even have to leave a twenty on your kitchen table.

The point here – the point I made 20 years ago to Chris Anderson – is that this is the foreseeable, inevitable result of designing devices for remote, irreversible, nonconsensual downgrades. Anyone who was paying attention should have figured that out in the GW Bush administration. Anyone who does this today? Absolute flaming garbage.

Sure, Zaslav deserves to be staked out over an anthill and slathered in high-fructose corn syrup. But save the next anthill for the Sony exec who shipped a product that would let Zaslav come into your home and rob you. That piece of shit knew what they were doing and they did it anyway. Fuck them. Sideways. With a brick.

Meanwhile, the studios keep making the case for stealing movies rather than paying for them. As Tyler James Hill wrote: "If buying isn't owning, piracy isn't stealing":

https://bsky.app/profile/tylerjameshill.bsky.social/post/3kflw2lvam42n

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/12/08/playstationed/#tyler-james-hill

Image: Alan Levine (modified) https://pxhere.com/en/photo/218986

Like Kessel, Osterweil's 'Extended Universe' deals with media that I have a great deal of affection for – the products of the Walt Disney Company. Though I'm primarily interested in theme parks – I love a big, ambitious built environment of any description and Disney pursues these with a seriousness that few others can touch – the Disney films (and the films of the studios Disney purchased, like Marvel and Lucasfilm) are obviously intimately bound up in those theme park designs.

Osterweil has her own ambivalent affection for these movies. Like so many of us, she's been raised on them, and they've shaped how she sees the world and its stories. But – like me – Osterweil is deeply suspicious of capitalism, American imperialism, and the notion of "intellectual property," and she uses reviews of a dozen Disney films to make the case that Walt Disney and the studio he founded with his brother are standards-bearers for these odious forces, and not just in the overt ways that might immediately spring to mind, but also in subtle ways that can be teased out of a close reading of the films.

In so doing, Osterweil also makes a sharp and well-argued case that intellectual property, colonialism and racial oppression are all facets of the same drive, the drive of people who fancy themselves born to rule to dominate others, which requires that those others also be dehumanized and their work denigrated. When Walt Disney insisted that his be the only name associated with "his" movies, he was playing out the same logic that underpinned his virulent opposition to labor unions and his participation in American imperialism in Latin America.

As with Kessel, Osterweil's argument is full of surprises and illuminations that are especially vivid for those of us who have great affection for these works. As her chapter on Black Panther shows, this contradiction need not go unresolved. There is plenty of scope for fans to seize the reins of the narrative (and as her chapter on the reactionary backlash to the later Star Wars movies shows, it's not just the forces of progress and anti-racism who can pull off this move).

Youtube, of course, is the internet's monopoly video platform, with a commanding majority of video streams. It was acquired by Google in 2006 for $1.65b. At the time, the service was hemorrhaging money and mired in brutal litigation, but it had one virtue that made it worth nine figures: people liked it. Specifically, people liked it in a way they didn't like Google Video, which was one of the many, many, many failed internally developed Google products that tanked, and was replaced by a product developed by a company that Google bought, because Google sucks at developing products. They're not Willy Wonka's idea factory – they're Rich Uncle Pennybags, buying up other kids' toys:

https://www.theatlantic.com/ideas/archive/2023/02/google-ai-chatbots-microsoft-bing-chatgpt/673052/

Google operationalized Youtube and built it up to the world's most structurally important video platform. Along the way, Google added some javascript that was intended to block people from "downloading" its videos. I put "downloading" in scare-quotes because "streaming" is a consensus hallucination: there is no way for your computer to display a video that resides on a distant server without downloading it – the internet is not made up of a cunning series of paper-towel rolls and mirrors that convey photons to your screen without sending you the bits that make up the file. "Streaming" is just "downloading" with the "save file" button removed.

In this case, the "save file" button is removed by some javascript on every Youtube page. This isn't hard to bypass: there are dozens of "stream-ripping" sites that let you save any video that's accessible on Youtube. I use these all the time – indeed, I used one last week to gank the video of my speech in Ottawa so I could upload it to my own Youtube channel:

https://www.youtube.com/watch?v=iZxbaCNIwg8

(As well as the Internet Archive, natch):

https://archive.org/details/disenshittification-nation

Now, all of this violates Youtube's terms of service, which means that someone who downloads a stream for an otherwise lawful purpose (like I did) is still hypothetically at risk of being punished by Google. We're relying on Google to be reasonable about all this, which, admittedly, isn't the best bet, historically. But at least the field of people who can attack us is limited to this one company.

That's good, because there's zillions of people who rely on stream-rippers, and many of them are Youtube's most popular creators. Youtube singlehandedly revived the form of the "video essay," popularizing it in many guises, from "reaction videos" to full-fledged, in-depth documentaries that make extensive use of clips to illuminate, dispute, and expand on the messages of other Youtube videos.

These kinds of videos are allowed under US copyright law. American copyright law has a broad set of limitation and exceptions, which include "fair use," an expansive set of affirmative rights to access and use copyrighted works, even against the wishes of the copyright's proprietor. As the Supreme Court stated in Eldred, the only way copyright (a government-backed restriction on who can say certain words) can be reconciled with the First Amendment (a ban on government restrictions on speech) is through fair use, the "escape valve" for free expression embedded in copyright:

https://en.wikipedia.org/wiki/Eldred_v._Ashcroft

Which is to say that including clips from a video you're criticizing in your own video is canonical fair use. What else is fair use? Well, it's "fact intensive," which is a lawyer's way of saying, "it depends." One thing that is 100% true, though, is that fair use is not limited to the "four factors" enumerated in the statute and anyone who claims otherwise has no idea what they're talking about and can be safely ignored:

https://pluralistic.net/2024/06/27/nuke-first/#ask-questions-never

Now, fair use or not, there are plenty of people who get angry about their videos being clipped for critical treatment in other videos, because lots of people hate being criticized. This is precisely why fair use exists: if you had to secure someone's permission before you were allowed to criticize them, critical speech would be limited to takedowns of stoics and masochists.

This means that the subjects of video essays can't rely on copyright to silence their critics. They also can't use the fact that those critics violated Youtube's terms of service by clipping their videos, because only Youtube has standing to ask a court to uphold its terms of service, and Youtube has (wisely) steered clear of embroiling itself in fights between critics and the people they criticize.

But that hasn't stopped the subjects of criticism from seeking legal avenues to silence their critics. In a case called Cordova v. Huneault, the proprietor of "Denver Metro Audits" is suing the proprietor of "Frauditor Troll Channel" for clipping the former's videos for "reaction videos."

One of the plaintiff's claims here is that the defendant violated Section 1201 of the DMCA by saving videos from Youtube. They argue that Youtube's javascript obfuscator (a "rolling cipher") is an "effective access control" under the statute. Magistrate Judge Virginia K DeMarchi (Northern District of California) agreed with the plaintiff:

https://torrentfreak.com/images/Cordova-v.-Huneault-25-cv-04685-VKD-Order-on-Motion-to-Dismiss.pdf

As Torrentfreak reports, this ruling "gives creators who want to sue rivals an option to sue for more than just simple copyright infringement":

https://torrentfreak.com/ripping-clips-for-youtube-reaction-videos-can-violate-the-dmca-court-rules/

Remember, DMCA 1201 applies whether or not you infringe someone's copyright. It is a blanket prohibition on the circumvention of any "effective access control" for any copyrighted work, even when no one's rights are being violated. It's a way to transform otherwise lawful conduct into a felony. It's what Jay Freeman calls "Felony contempt of business model."

If the higher court upholds this magistrate judge's ruling, then all clipping becomes a crime, and the subjects of criticism will have a ready tool to silence any critic. This obliterates fair use, wipes it off the statute-book. It welds shut copyright's escape valve for free expression.

Now, it's true that the US Copyright Office holds hearings every three years where it grants exemptions to DMCA 1201, and it has indeed granted an exemption for ripping video for critical and educational purposes. But this process is deceptive! The exemptions that the Copyright Office grants are "use exemptions" – they allow you to "make the use." However, they are not "tools exemptions" – they do not give you permission to acquire or share the tool needed to make the use:

https://pluralistic.net/2024/10/28/mcbroken/#my-milkshake-brings-all-the-lawyers-to-the-yard

Which means that you are allowed to rip a stream, but you're not allowed to use a stream-ripping service. If Youtube's rolling cipher is an "effective access control" then all of those stream-ripping services are wildly illegal, felonies carrying a five-year sentence and a $500k fine for a first offense under DMCA 1201.

Under the US Copyright Office's exemption process, if you want to make a reaction video, then you, personally must create your own stream-ripper. You are not allowed to discuss how to do this with anyone else, and you can't share your stream-ripper with anyone else, and if you do, you've committed a felony.

So this is a catastrophic ruling. If it stands, it will make the production of video essays, reaction videos, and other critical videos into a legal minefield, by giving everyone whose video is clipped and criticized a means to threaten their critics with long prison sentences, fair use be damned. The only people who will safely be able to make this kind of critical video are skilled programmers who can personally defeat Youtube's "rolling cipher." And unlike claims about stream-ripping violating Youtube's terms of service – which can only be brought by Youtube – DMCA 1201 claims can be brought by anyone whose videos get clipped and criticized.

Is Youtube's rolling cipher an "effective access control?" Well, I don't know how to bypass it, but there are dozens of services that have independently figured out how to get around it. That seems like good evidence that the access control is not "effective."

When the DMCA was enacted in 1998, this is exactly the kind of thing experts warned would happen:

https://pluralistic.net/2025/05/13/ctrl-ctrl-ctrl/#free-dmitry

And here we are, more than a quarter-century later, living in the prison of lawmakers' reckless disregard for evidence and expertise, a world where criticism can be converted into a felony. It's long past time we get rid of this stupid, stupid law:

https://pluralistic.net/2026/01/01/39c3/#the-new-coalition

Image: Electronic Frontier Foundation https://www.eff.org/wp/unfiltered-how-youtubes-content-id-discourages-fair-use-and-dictates-what-we-see-online

There are some big hits from our returning champions, like Woolf's To the Lighthouse and A Farewell to Arms from Hemingway. Jenkins and Boyle call particular attention to one book: Faulkner's The Sound and the Fury, its title taken from a public domain work by Shakespeare. As they write, Faulkner spoke eloquently about the nature of posterity and culture:

[Humanity] is immortal, not because he alone among creatures has an inexhaustible voice, but because he has a soul, a spirit capable of compassion and sacrifice and endurance…The poet’s voice need not merely be the record of man, it can be one of the props, the pillars to help him endure and prevail.

The main attraction on last year's Public Domain Day was the entry of Steamboat Willie – the first Mickey Mouse cartoon – into the public domain. This year, we're getting a dozen new Mickey cartoons, including the first Mickey talkie:

https://en.wikipedia.org/wiki/Mickey_Mouse_(film_series)#1929

Those 12 shorts represent a kind of creative explosion for the Disney Studios. Those early Mickey cartoons were, each and every one, a hybrid of new copyrighted works and the public domain. The backbone of each Mickey short was a beloved, public domain song, with Mickey's motion synched to the beat (animators came to call this "mickey mousing"). In 1929, there was a huge crop of public domain music that anyone could use this way:

Blue Danube, Pop Goes the Weasel, Yankee Doodle, Here We Go Round the Mulberry Bush, Ach Du Lieber Augustin, Listen to the Mocking Bird, A-Hunting We Will Go, Dixie, The Girl I Left Behind Me, a tune known as the snake charmer song, Coming Thru the Rye, Mary Had a Little Lamb, Auld Lang Syne, Aloha ‘Oe, Turkey in the Straw, My Bonnie Lies Over the Ocean, Habanera and Toreador Song from Carmen, Lizst’s Hungarian Rhapsody No. 2, and Goodnight, Ladies.

These were recent compositions, songs that were written and popularized in the lifetimes of the parents and grandparents who took their kids to the movies to see Mickey shorts like "The Barn Dance," "The Opry House" and "The Jazz Fool." The ability to plunder this music at will was key to the success of Mickey Mouse and Disney. Think of all the Mickeys and Disneys we've lost by locking up the public domain for the past half-century!

This year, we're getting some outstanding new old music for our public domain. The complexities of copyright terms mean that compositions from 1929 are entering the public domain, but we're only getting recordings from 1924. 1924's outstanding recordings include:

George Gershwin performing Rhapsody in Blue, Jelly Roll Morton playing Shreveport Stomp, and an early recording from contralto and civil rights icon Marian Anderson, who is famous for her 1939 performance to an integrated audience of over 75,000 people at the Lincoln Memorial. Anderson’s 1924 recording is of the spiritual Nobody Knows the Trouble I’ve Seen.

While the compositions include Singin' in the Rain, Ain't Misbehavin', An American in Paris, Bolero, (What Did I Do to Be So) Black and Blue, Tiptoe Through the Tulips, Happy Days Are Here Again, What Is This Thing Called, Love?, Am I Blue? and many, many more.

On the art front, we're getting Salvador Dali's earliest surrealist masterpieces, like Illumined Pleasures, The Accommodations of Desire, and The Great Masturbator. Dali's contemporaries are not so lucky: after a century, the early history of the works of Magritte are so muddy that it's impossible to say whether they are in or out of copyright.

But there's plenty of art with clearer provenance that we can welcome into the public domain this year, most notably, Popeye and Tintin. As the first Popeye and Tintin comics go PD, so too do those characters.

The idea that a fictional character can have a copyright separate from the stories they appear in is relatively new, and it's weird and very stupid. Courts have found that the Batmobile is a copyrightable character (Batman won't enter the public domain until 2035).

Copyright for characters is such a muddy, gross, weird idea. The clearest example of how stupid this gets comes from Sherlock Holmes, whose canon spans many years. The Doyle estate – a rent-seeking copyright troll – claimed that Holmes wouldn't enter the public domain until every Holmes story was in the public domain (that's this year, incidentally!).

This didn't fly, so their next gambit was to claim copyright over those aspects of Holmes's character that were developed later in the stories. For example, they claimed that Holmes didn't show compassion until the later stories, and, on that basis, sued the creators of the Enola Holmes TV show for depicting a gender-swapped Sherlock who wasn't a total dick:

https://www.theguardian.com/books/2020/dec/22/lawsuit-copyright-warmer-sherlock-holmes-dismissed-enola-holmes

As the Enola lawyers pointed out in their briefs, this was tantamount to a copyright over emotions: "Copyright law does not allow the ownership of generic concepts like warmth, kindness, empathy, or respect, even as expressed by a public domain character – which, of course, belongs to the public, not plaintiff."

When Mickey entered the public domain last year, Jenkins did an excellent deep dive into which aspects of Mickey's character and design emerged when:

https://web.law.duke.edu/cspd/mickey/

Jenkins uses this year's entry of Tintin and Popeye into the public domain to further explore the subject of proprietary characters.

Even though copyright extends to characters, it only covers the "copyrightable" parts of those characters. As the Enola lawyers wrote, the generic character traits (their age, emotional vibe, etc) are not protected. Neither is anything "trivial" or "minuscule" – for example, if a cartoonist makes a minor alteration to the way a character's pupils or eyes are drawn, that's a minor detail, not a copyrightable element.

The biggest impediment to using public domain characters isn't copyright, it's trademark. Trademark is very different from copyright: foundationally, trademark is the right to protect your customers from being deceived by your competitors. Coke can use trademark to stop Pepsi from selling its sugary drinks in Coke cans – not because it owns the word "Coke" or the Coke logo, but because it has been deputized to protect Coke drinkers from being tricked into buying not-Coke, thinking that they're getting the true Black Waters of American Imperialism.

Companies claim trademarks over cartoon characters all the time, and license those trademarks on food, clothing, toys, and more (remember Popeye candy cigarettes?).

Indeed, Hearst Holdings claims a trademark over Popeye in many traditional categories, like cartoons, amusement parks, ads and clothes. They're also in the midst of applying for a Popeye NFT trademark (lol).

Does that mean you can't use Popeye in any of those ways? Nope! All you need to do is prominently mention that your use of Popeye is unofficial, not associated with Hearst, and dispel any chance of confusion. A unanimous Supreme Court decision (in Dastar) affirm your right to do so. You can also use Popeye in the title of your unauthorized Popeye comic, thanks to a case called Rogers v Grimaldi.

This all applies to Tintin, too – a big deal, given that Tintin is managed by a notorious copyright bully who delights in cruelly terrorizing fan artists. Tintin is joined in the public domain by Buck Rogers, another old-timey character whose owners are scumbag rent-seekers.

Congress buried the public domain alive in 1976, and dumped a load of gravel over its grave in 1998, but miraculously, we've managed to exhume the PD, and it has been revived and is showing signs of rude health.

2024 saw the blockbuster film adaptation of Wicked, based on the public domain Oz books. It also saw the publication of James, a celebrated retelling of Twain's Huck Finn from the perspective of Huck's enslaved sidekick.

This is completely normal. It's how art was made since time immemorial. The 40 year experiment in life without a public domain is at an end, and not a minute too soon.

You can piece together a complete-as-possible list of 2025's public domain (including the Marx Brothers' Cocoanuts, Disney's Skeleton Dance, and Del Ruth's Gold Diggers of Broadway) here: