Blake E. Reid
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chup.blakereid.org
Blake E. Reid
@chup.blakereid.org
5.3K followers 1K following 800 posts
Simple country tech law professor, multidisciplinary dilettante. Ska, Crocs, fizzy water, chup. Need just one more guitar pedal. Someone is wrong on the Internet and it might be me. No legal or good advice; opinions my own, bad
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chup.blakereid.org
Grateful to @indefenseofska.bsky.social for so many years of good listens and reconnecting me with a scene that I’d lost. And very proud to have dropped what I *think* is the only cite (so far!) to the book in a law review article. (Still has to survive the editors but I will fight for it.)
Of course, any reasonably self-conscious telecom law scholar must admit that the field has fallen out of favor since the late 1990s499 when internet exceptionalism began to take root.500 More problematically, Justice Kagan’s… 499. Defenders of ska music know the feeling. Cf. Aaron Carnes, IN DEFENSE OF SKA (2021).
July 6, 2025 at 3:57 AM
chup.blakereid.org
The first reg implicates a mess of questions around the "generally applicable law" carveout. The second, likewise, around the "facilitate the development or operation of" carveout. 4/
‘‘(II) a generally applicable law or regulation, such as a law or regulation per- taining to unfair or deceptive acts or prac- tices, child online safety, child sexual abuse material, rights of publicity, protection of a person’s name, image, voice, or likeness and any necessary documentation for en- forcement, or a body of common law, that may address, without undue or dispropor- tionate burden, artificial intelligence mod- els, artificial intelligence systems, or auto- mated decision systems to reasonably effec- tuate the broader underlying purposes of the law or regulation; and ‘‘(I) remove legal impediments to, or facilitate the deployment or operation of, an artificial intelligence model, artificial in- telligence system, or automated decision system; or
June 30, 2025 at 3:57 PM
chup.blakereid.org
Second, there's the regulation of third parties that provide age verification systems, which arguably *compels* the use of an some kind of identification system (all of the possibilities of which are arguably themselves ADS) and imposes a nominal privacy regulation on those parties 3/
(b) A commercial entity that performs the age verification required by Subsection (a) or a third party that performs the age verification required by Subsection (a) may not retain any identifying information of the individual.
June 30, 2025 at 3:55 PM
chup.blakereid.org
First, there's the regulation of "knowing and intentional publication on an Internet website" which at any scale is going to involve something at least in the ballpark of what the budget bill calls an "automated decisionmaking system" 2/
Sec. 129B.002. PUBLICATION OF MATERIAL HARMFUL TO MINORS. (a) A commercial entity that knowingly and intentionally publishes or distributes material on an Internet website, including a social media platform, more than one-third of which is sexual material harmful to minors, shall use reasonable age verification methods as described by Section 129B.003 to verify that an individual attempting to access the material is 18 years of age or older. ‘‘(E) AUTOMATED DECISION SYSTEM.— The term ‘automated decision system’ means any computational process derived from ma- chine learning, statistical modeling, data ana- lytics, or artificial intelligence that issues a sim- plified output, including a score, classification, or recommendation, to materially influence or replace human decision making.’’; and
June 30, 2025 at 3:48 PM
chup.blakereid.org
Tired: leaving the Internet largely unregulated for three decades because judges aren’t sure what the word “publisher” means
Wired: replacing one word with big word salad that will now be litigated in every state law case nominally involving a computer and a decision
“(II) a generally applicable law or regulation, such as a law or regulation per- taining to unfair or deceptive acts or prac- tices, child online safety, child sexual abuse material, rights of publicity, protection of a person’s name, image, voice, or likeness and any necessary documentation for en- forcement, or a body of common law, that may address, without undue or dispropor- tionate burden, artificial intelligence mod- els, artificial intelligence systems, or auto- mated decision systems to reasonably effec- tuate the broader underlying purposes of the law or regulation; and
June 30, 2025 at 2:01 PM
chup.blakereid.org
Cosign @kendraserra.bsky.social's suggestion to read Kagan's dissent first. It cuts right to the chase: Thomas' opinion is openly results-oriented, but sloppily tries to cover that up with a mess of self-contradictory reasoning from which everyone else will have to try and divine a coherent rule.
The majority’s opinion concluding to the contrary is, to be frank, confused. The opinion, to start with, is at war with itself. The majority is not shy about why it has adopted these special-for-the-occasion, difficult-to-decipher rules. It thinks they are needed to get to what it considers the right result: giving Texas permission to enforce its statute.
June 27, 2025 at 6:23 PM
chup.blakereid.org
As a bonus from FSC v. Paxton, don't sleep on fn. 4, where Thomas can't help but continue his extra-textual quest to reinterpret Section 230 to mean something different from what it says on the tin. (At least he cited it correctly.)
4 Elsewhere in the CDA, Congress recognized that content filtering was still an emerging technology and that companies attempting to use it faced serious risks. A year before the CDA’s enactment, a New York court had held that an online service provider could be held liable as a publisher for defamatory posts by third-party users because the provider had “held itself out as” “a family oriented computer network” that screened out inappropriate content. Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, *2 (Sup. Ct. N. Y., May 24, 1995). In re- sponse, the CDA added a new §230 to the Communications Act of 1934. §509, 110 Stat. 137–139 (codified as amended at 47 U. S. C. §230). Sec- tion 230 provides that computer service providers (1) shall not “be treated as the publisher or speaker of any information provided by” a third party, and (2) shall not “be held liable” for good-faith actions to re- strict access to material that they consider to be “obscene, lewd, lascivi- ous, filthy, excessively violent, harassing, or otherwise objectionable,” or to enable others (such as users) to restrict access to such material. §230(c). Congress thereby aimed to spur the development and use of fil- tering technology so that parents could prevent their children from ac- cessing sexually explicit content online. See §509, 110 Stat. 137 (title) (“Online Family Empowerment”); 47 U. S. C. §230 (title) (“Protection for private blocking and screening of offensive material”); §230(c) (title) (“Protection for ‘Good Samaritan’ blocking and screening of offensive ma- terial”); 141 Cong. Rec. 22045 (1995) (remarks of Rep. Cox) (“We want to encourage” computer service providers “to help us control . . . what our children see” using filtering “technology” that “is very quickly becoming available”).
June 27, 2025 at 6:00 PM
chup.blakereid.org
I also don’t think “leaving the Copyright Office without an active boss” is an accurate characterization of what Perlmutter’s lawyers argue will cause dysfunction. They’ve been quite explicit that she “remains the Register of Copyrights.”
2. Plaintiff remains Register of Copyrights and is therefore required to fulfill her statutory duties. Beyond the loss of her “statutory right to function,” absent preliminary relief Plaintiff will also be prevented from performing the legislative functions that continue to be required of her. Ms. Perlmutter remains the Register of Copyrights according to the Library of Congress’s leadership and staff; she has not received any communication from Library of Congress leadership that could lawfully terminate her employment. See Perlmutter Decl. ¶ 13; see also Leadership, U.S. Copyright Off., https://www.copyright.gov/about/leadership (identifying Ms. Perlmutter as Register as of June 10, 2025). Ms. Perlmutter therefore is required by law to fulfill her statutory obligations while this lawsuit is pending, unless she is removed from office by a duly appointed Librarian.
June 27, 2025 at 2:43 PM
chup.blakereid.org
Judge Chhabria knew that his opinion in Kadrey v. Meta would be publicly consumed and misunderstood, so he wrote a GIANT CAVEAT ABOUT THE LIMITED SIGNIFICANCE OF THE HOLDING THAT EVERYONE REALLY SHOULD READ BEFORE ISSUING HOT TAKES. It's very short and I'm not even going to summarize it. Read it!
The upshot is that in many circumstances it will be illegal to copy copyright-protected works to train generative AI models without permission. Which means that the companies, to avoid liability for copyright infringement, will generally need to pay copyright holders for the right to use their materials. But that brings us to this particular case. The above discussion is based in significant part on this Court’s general understanding of generative AI models and their capabilities. Courts can’t decide cases based on general understandings. They must decide cases based on the evidence presented by the parties. Given the state of the record, the Court has no choice but to grant summary judgment to Meta on the plaintiffs’ claim that the company violated copyright law by training its models with their books. But in the grand scheme of things, the consequences of this ruling are limited. This is not a class action, so the ruling only affects the rights of these thirteen authors—not the countless others whose works Meta used to train its models. And, as should now be clear, this ruling does not stand for the proposition that Meta’s use of copyrighted materials to train its language models is lawful. It stands only for the proposition that these plaintiffs made the wrong arguments and failed to develop a record in support of the right one.
June 25, 2025 at 9:14 PM
chup.blakereid.org
...and just in case you thought Judge Alsup's framework for generative AI and copyright was going to uncontroversially become the law of the land, here's Judge Chhabria coming off the top rope with a sharp critique and a totally different approach
Speaking of which, in a recent rulingon this topic,Judge Alsup focused heavily on the transformative nature of generative AI while brushing aside concerns about the harm it can inflict on the market for the works it gets trained on. Such harm would be no different, he reasoned, than the harm caused by using the works for “training schoolchildren to write well,”which could “result in an explosion of competing works.” Order on Fair Use at 28, Bartz v. AnthropicPBC, No. 24-cv-5417 (N.D. Cal. June 23, 2025), Dkt. No. 231. According to Judge Alsup, this “is not the kind of competitive or creative displacement that concerns the Copyright Act.” Id.But when it comes to market effects, using books to teach children to write is not remotely like using books to create a product that a single individual could employ to generate countless competing works with a miniscule fraction of the time and creativity it would otherwise take.This inapt analogy is not a basis for blowing off the most important factor in the fair use analysis.
June 25, 2025 at 9:10 PM
chup.blakereid.org
One last thing: I’ve said that these technologies often look like they are designed by engineers who’ve locked their copyright lawyers in the broom closet. I’ve been focused a lot on the user interfaces. But where this really materialized in this case was in the data set assembly.
Anthropic thereby pirated over seven million copies of books, including copies of at least two works at issue for each Author.' As Anthropic trained successive LLMs, it became convinced that using books was the most cost-effective means to achieve a world-class LLM. During this time, however, Anthropic became "not so gung ho about" training on pirated books "for legal reasons"
June 24, 2025 at 6:41 PM
chup.blakereid.org
To be specific I’m not sure the info asymmetry is the same on either side or that the same kind of transparency is plausible
There is an inescapable information asymmetry between users and search engines. No one setting out on a journey of en- lightenment knows what lies at the end of the road—if she did, there would be no need of the journey. The user knows more about what she wants, whether it be free online calculus practice questions] or (brinty spiers toplessl, but the search engine knows far more about whether anyone has put practice questions Transparency is a crucial aspect of loyalty. On one level, proper disclosures can defuse almost any deception. But on a deeper level, transparency is also profoundly helpful in ena- bling users to understand what it is they are getting from a search engine and how to use it effectively.
June 20, 2025 at 3:05 AM
chup.blakereid.org
It's unfortunate that Kevin and @caseynewton.bsky.social obscure what are directionally useful and journalistically reasonable descriptive points about AI's proliferation and social salience with anecdotal, performative provocations, half-baked policy prescriptions, and strawman-burning of critiques
ROOSE A.I. has essentially replaced Google for me for basic questions: What setting do I put this toaster oven on to make a turkey melt? How do I stop weeds from growing on my patio? I use it for interior decorating — I’ll upload a photo of a room in my house and say, “Give this room a glow-up, tell me what furniture to buy and how to arrange it and generate the ‘after’ picture.” A friend of mine just told me that they now talk to ChatGPT voice mode on their commute in their car — instead of listening to a podcast, they’ll just open it up and say, “Teach me something about modern art,” or whatever. NEWTON That’s a terrible threat to our business. What are we doing about this? ROOSE I guess it’s time to pivot to modern art. Another person I know just started using ChatGPT as her therapist after her regular human therapist doubled her rates. If you’re the first lawyer who cites a nonexistent case because of ChatGPT, that’s on ChatGPT. If you’re the 100th, that’s on you. Sometimes when I hear people arguing about how A.I. systems are stupid and useless, it’s almost as if you had an antinuclear movement that didn’t admit fission was real — like, looking at a mushroom cloud over Los Alamos, and saying, “They’re just raising money, this is all hype.” Instead of, “Oh, my God, this thing could blow up the world.” NEWTON Yeah, I think so much A.I. denialism comes off as a kind of wishful thinking — which, again, I’m sympathetic to, because in a lot of ways it would be easier if all this stuff was fake and was going to fall into the ocean the way that cryptocurrency did after its 2021 peak. But as journalists, the more we talk to people, the less likely we think that is.
June 17, 2025 at 5:50 PM
chup.blakereid.org
"No coding needed" tools long predate generative AI and the perennial problem with them is that maintenance and updates inevitably create dependencies. (The long term mechanisms for maintaining and updating a codebase are as or more important than the code for a software project of any complexity.)
For personal productivity tools, workflow automation, and small community projects, you can actually build what you need, no coding skills needed. The tools exist, they’re accessible, and they work. Sometimes the best way to escape someone else’s control is to just stop asking, and just take charge.
June 6, 2025 at 8:51 PM
chup.blakereid.org
A (truly) friendly suggestion: next time you want to make a significant change, try doing it with another tool (or do it manually, or let a coder friend take a look and give you an estimate for what they'd charge). If the experience is along the lines of what you've described here...
Then, at the suggestion of a friend, I tried to import the project into Firebase Studio, owned by Google, and built on top of Firebase. As with Bolt, I first tried to pull in my GitHub repo, which worked… except, for reasons I don’t understand, the AI features then all seemed disabled. After messing around with it for a bit and getting nowhere, the same friend who recommended I try Firebase Studio said “it might just be faster to ask Firebase Studio to recreate the project from scratch.” I gave it the same prompt and… it created “Momentum Flow,” with its own interpretation of the prompt.
June 6, 2025 at 8:46 PM
chup.blakereid.org
Glad to see @waldo.net making the observation that should be beat-you-over-the-head obvious to any CS major who's taken a software engineering course, which is that problem assessment and refinement and tool selection are at the threshold of any major software project.
“AI is absolutely the wrong tool for this,” said Waldo Jaquith, a former Obama appointee who oversaw IT contracting at the Treasury Department. “AI gives convincing looking answers that are frequently wrong. There needs to be humans whose job it is to do this work.”
June 6, 2025 at 4:43 PM
chup.blakereid.org
Lastly, Judge Hinkle is already tired of this case. He won't compel detailed discovery from all of NetChoice's members because, to summarize, the state law as drafted is a total dumpster fire and he doesn't need to know all the gory details of every internet company to figure that out. 12/
The Supreme Court’s discussion of the plaintiffs’ facial claims and the breadth of the inquiry those claims will require has understandably triggered every good litigator’s best, or perhaps worst, instinct: to turn over every rock, to catalog every fact, to explore every nuance. But this litigation need not be nearly that complicated. Some of these challenged provisions, as applied to some of the plaintiffs’ members, are almost surely unconstitutional; at oral argument, the defendants came close to acknowledging this. With “social media platform” now properly construed and the required facial-challenge methodology now settled by the Supreme Court, the plaintiffs’ facial challenge to SB 7072, and perhaps even to its various provisions viewed in isolation, is likely to fail—and the disputed discovery, if allowed, would almost surely make no difference. Discovery that imposes a significant burden and is almost sure to make no difference is ordinarily beyond the properly defined scope of discovery; it fails the proportionality test. If, as the litigation progresses, it turns out this is incorrect—if it turns out the facial challenge is more substantial than this order suggests and that additional discovery might enhance the defendants’ ability to fully present their position—the discovery issue can be revisited.
June 4, 2025 at 11:00 PM
chup.blakereid.org
Also not surprising to see a more detailed treatment of vagueness here, given how unclear it is how these statutes actually work. (Cf. @mmasnick.bsky.social's colorfully titled piece on the Texas statute. www.techdirt.com/2022/05/12/j...) 11/
no way to determine what the provision really requires. The defendants have not attempted to explain what these provisions really mean or how they would be applied. Nor have the defendants offered any theory under which a state can preclude this kind of curating without violating the First Amendment.
June 4, 2025 at 10:56 PM
chup.blakereid.org
It *doesn't* look like the court will simply rest on its previous 230 preemption holding, but rather will take on some more searching review of the question, presumably given the SCOTUS demand for details on the 1A issues. 9/
In sum, Madonna is still the law of the circuit. In due course, count four will require a searching, provision-by-provision analysis.
June 4, 2025 at 10:52 PM
chup.blakereid.org
More importantly, the court tees up the possibility that it will knock out at least some of the issues in the case with Section. 230 rather than the First Amendment, which I have long speculated might happen. (Indeed, this court did just that in the first round of litigation!) 8/
C. § 230 merits Count four of the amended complaint alleges § 230 preempts specific parts, not all, of Florida Statutes §§ 106.072 and § 501.2041. The claim is labeled neither facial nor as-applied; it is simply a preemption claim. Second, however: the proceedings also underscore that Section 230 may preempt both laws to some degree—a possibility that arose at the NetChoice oral arguments.169 As to the Florida law, the district court in Moody quietly concluded that Section 230 preempted the parts of the Florida law “that purport to impose liability for other decisions to remove or restrict access to content.”170 The Eleventh Circuit did not address or disturb the district court’s conclusions about preemption of the carriage provisions.171 As for the Texas law, the district court offhandedly acknowledged but did not address the platforms’ Section 230 preemption arguments.172 Before the Fifth Circuit, the platforms briefly reasserted that Section 230 preempted H.B. 20, but declared that there was “no need for [the Fifth Circuit] to address [Section 230 preemption].”173 The Fifth Circuit castigated the platforms for addressing preemption so briefly, concluding that the treatment was “insufficient to adequately brief [the] claim” and that the platforms had “forfeited their preemption argument.”174 Yet even if the Fifth Circuit’s ruling on preemption in Paxton itself holds following the Supreme Court’s ruling, the possibility remains that platforms will be able to reassert Section 230 preemption in future facial or as-applied challenges. Finally, the proceedings underscore that Florida and Texas did not undertake aggressive efforts to pay down Section 230’s legislative debt in ignorance of the possibility that Section 230 might preempt their laws even if they shot the moon on the First Amendment with the Supreme Court. Both Texas and Florida aggressively urged the courts from the early stages of both Moody and Paxton to narrow the scope of Section 230.175 And while the Supreme Court’s grant of certiorari in the NetChoice cases nominally is limited to questions about the First Amendment,176 both Florida and Texas have sought throughout the litigation to sneak Section 230 back into the cases using the First Amendment as a Trojan horse.177 Without regard to the contestable substance of the arguments, it is underappreciated how aggressively the states have urged the Court to revisit its decision to punt on the scope of Section 230 in Gonzalez178 with a vehicle potentially more likely to appeal to the Court’s conservative justices.179
June 4, 2025 at 10:49 PM
chup.blakereid.org
Anyway, I'm not sure how novel this is, but it's pretty interesting to see the court discuss the use of Section 1983 as a claim against state laws that trod on Section 230. 7/
A hypothetical may help explain just how far the defendants’ position strays from the proper analysis. Suppose a state passed a statute saying a social-media provider could be held liable for damages based on any defamatory material posted on its site—precisely the result § 230 was enacted to prohibit—and that each posting of defamatory material would result in a substantial fine levied against the provider, regardless of whether the provider was even aware of the defamatory material. Any assertion that a provider who hosted millions of postings each day could not seek prospective relief under § 1983 or equitable principles would be, in the language of Moms for Liberty, borderline frivolous. Or perhaps not just borderline.
June 4, 2025 at 10:43 PM
chup.blakereid.org
The court makes a sly little dig at Justice Thomas by pointing out at that he raised standing as an issue when the case was before SCOTUS, and implies that the rest of the Justices tacitly blessed standing by ignoring him. LOL. 6/
The Supreme Court, too, addressed the merits in substantial respects, explicitly providing guidance to the courts on remand, without questioning the plaintiffs’ standing. The Court could not have overlooked the issue; it was raised in a separate opinion. See Moody v. NetChoice, 603 U.S. at 760 n.2 (Thomas, J., concurring in the judgment). The defendants say the Court’s failure to challenge standing was just a “drive-by” ruling that should be ignored. Perhaps so. But it was a drive-by ruling in this very case.
June 4, 2025 at 10:40 PM
chup.blakereid.org
Anyway, common carriage sloganeering doesn't work on the internet, because we have lots of different definitional buckets that work in counterintuitive ways. Here, the Florida statute applies beyond traditional social media because the drafters sloppily based their definitions on Section 230. 4/
The controlling definition is of course the definition that was enacted into law, not the description the Senate sponsor provided in support of a proposed amendment that failed. The inescapable fact is that the adopted language derived from § 230(f)(2). When context and all appropriate considerations are factored in, the adopted definition still means what it says. In sum, both § 230(f)(2) and Florida Statutes § 501.2041(1)(g) apply not just to traditional social-media providers but also to a wide variety of other applications that provide multiple users access to or over the internet.
June 4, 2025 at 10:32 PM
chup.blakereid.org
Aside: I could not agree more with @ericgoldman.bsky.social on the nebulousness of the term "ISP," which is one reason my coauthors and I spend a whole chapter in our textbook on classification problems! 3/
It turns out that for the internet, the substantive policy question of access has effectively collapsed into the more formalistic legal question of classification: What is this thing called “the internet”? This is why we’ve pulled out internet access into a separate chapter: to use it as the pedagogical vehicle with which to explore the important concept of classification.
June 4, 2025 at 10:27 PM
chup.blakereid.org
First, I'm thrilled that the court frames the case first as a classification problem—a key telecom concept, which further underscores my argument that NetChoice is a telecom case! 2/
At the outset, a word is in order about terminology. This order uses the term “traditional social-media provider” to refer to what most people would probably understand that term to mean—so Facebook, Instagram, YouTube, X, and dozens of smaller but similar providers. The distinguishing characteristic is perhaps this: the primary function of a traditional social-media provider, or at least a primary function, is to receive content from users and in turn to make the content available to other users, usually allowing those other users to respond. See, e.g., Moody v. NetChoice, 603 U.S. at 719. This is hardly a precise definition, but none is needed; the term is used only for purposes of this order. The term “traditional social-media provider,” as used in this order, is intentionally not a description of the providers who are covered by the challenged statutes. The challenged statutes, in contrast, use a different term, “social media platform.” See Fla. Stat. § 501.2041(1)(g). Regardless of which side is correct about the proper construction of that term’s statutory definition, it is clear that not all traditional social-media platforms are covered; to be covered, an entity must meet minimum revenue or participant requirements. See id. § 501.2041(1)(g)4. There is no significance to this order’s use of “provider” instead of “platform.” It is just an effort to further distinguish two different sets of entities: traditional social- media providers, on the one hand, and the social media platforms covered by the statute, on the other hand. This Article explains these significant implications of NetChoice’s core holding by framing NetChoice as a new entry in the telecom First Amendment canon, sitting atop a foundation of underexplored and misunderstood jurisprudence dating back nearly a century. 14
June 4, 2025 at 10:24 PM