Print Archive

May 2025 | Jacqueline C. Charlesworth | Article |

Pointing to Authors Guild, Inc. v. Google Inc., Authors Guild, Inc. v. HathiTrust, Sega Enterprises Ltd. v. Accolade, Inc. and other leading technology-driven fair use precedents, artificial intelligence (AI) companies and those who advocate for their interests claim that mass unauthorized reproduction of books, music, photographs, visual art, news articles, and other copyrighted works to train generative AI systems is a fair use of those works. Though acknowledging that works are copied without permission for the training process, the proponents of fair use maintain that an AI machine learns only uncopyrightable information about the works during that process. Once trained, they say, the model does not incorporate or make use of the content of the training works. As such, they contend, copying for the purposes of AI training is a fair use under US law.

This Article challenges the above narrative by examining generative AI training and functionality. Despite wide employment of anthropomorphic terms to describe their behavior, AI machines do not learn or reason as humans do. Instead, they employ an algorithmic process to store the works they are fed during the training process. They do not “know” anything independently of the works on which they are trained, so their output is a function of the copied materials.

More specifically, large language models (LLMs) are trained by breaking textual works down into small segments, or “tokens” (typically individual words or parts of words), and converting the tokens into vectors—numerical representations of the tokens and where they appear in relation to other tokens in the text. The training works do not vanish, as suggested, but instead are encoded, token by token, into the model and relied upon to generate output. AI image generators are trained somewhat differently through a “diffusion” process in which they learn to reconstruct particular training images in conjunction with associated descriptive text. Like an LLM, however, an AI image generator relies on encoded representations of training works to generate its output.

The exploitation of expressive content to produce new expressive content sharply distinguishes AI copying from the copying at issue in the technological fair use cases relied upon by AI’s fair use advocates. In these earlier cases, the determination of fair use turned on the fact that the alleged infringer was not seeking to capitalize on authors’ creative expression. This is exactly the opposite of generative AI.

The fair use argument for generative AI is further hampered by the propensity of models to generate infringing copies and derivatives of training works. In addition, some AI models rely on retrieval-augmented generation (RAG) technology to generate output. RAG searches out and copies materials from online sources to augment and respond to user queries (for example, regarding an event that postdates the training of the LLM). Here again, copyrighted materials are being copied by generative AI without permission in order to exploit their expressive content.

For these and other reasons, each of the four fair use factors of Section 107 of the Copyright Act weighs against AI’s claim of lawful use, especially when considered against the backdrop of a rapidly evolving market for licensed use of training materials.

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May 2025 | Mark Fenwick, Michael Fertik, Paulius Jurcys & Timo Minssen | Article |

This Article critically examines the contemporary regulatory framework and discourse surrounding data portability in the United States. Using recent regulatory developments in the European Union as an illustration, this Article suggests that although data access and portability are identified as vital issues in multiple policy instruments, in its current iteration, at least, legal conceptions of portability continue to reinforce the interests of service providers and data controller enterprises rather than individual end users. This Article argues that a paradigm shift toward a more human-centric data approach to data governance must occur, under which data would be recognized as fundamental to an individual’s identity in a digital age. Therefore, it should be placed in the hands of individuals rather than service providers or data controller enterprises. This Article considers technical and market trends in the European Union that reveal and facilitate such a change. It suggests that regulatory frameworks should better align with these technological and market developments to encourage change-inducing trends among market actors. In short, this Article identifies a transformative approach to data portability that empowers individuals with the freedom and ability to aggregate their data in secure personal spaces under their control or dominion. Such a human-centric perspective on data portability is crucial in building Artificial Intelligence (AI)-powered applications for individual consumers that can pave the way for the human-centric, AI-driven data ecosystems of the future.

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May 2025 | Shaoor Munir, Konrad Kollnig, Anastasia Shuba & Zubair Shafiq | Article |

This Article examines Google’s dominance of the browser market, highlighting how Google’s Chrome browser plays a critical role in reinforcing Google’s dominance in other markets. While Google portrays Chrome as a neutral platform built on open-source technologies, this Article shows that Chrome is, in fact, instrumental in Google’s strategy to reinforce its dominance in the online advertising, publishing, and browser markets. The examination of Google’s strategic acquisitions, anticompetitive practices, and the implementation of so-called “privacy controls” underlines that Chrome is far from a neutral gateway to the web. Rather, it serves as a key tool for Google to maintain and extend its market power, often to the detriment of competition and innovation in the digital economy.

This Article illustrates how Chrome not only bolsters Google’s position in online advertising and publishing through practices such as coercion and self-preferencing, but also leverages its advertising clout to engage in a “pay-to-play” paradigm—the cornerstone of Google’s larger strategy of market control. It also outlines potential regulatory interventions and remedies by drawing on historical antitrust precedents. Lastly, this Article proposes a triad of solutions motivated by an analysis of Google’s abuse of Chrome, including behavioral remedies targeting specific anticompetitive practices, structural remedies involving an internal separation of Google’s divisions, and divestiture of Chrome from Google into an independent organization.

Despite Chrome’s dominance and its critical role in Google’s ecosystem, as well as its recent legal troubles with the Department of Justice, it so far has avoided significant antitrust action. A key reason for this inaction lies in the long-standing precedent supporting the hegemony of technology firms and the uncertainty surrounding Chrome’s viability as a standalone entity. This Article attempts to address these issues to enable antitrust actions that are essential in remedying current market imbalances. Such actions are also critical to mitigate future threats to competition from an increasingly monopolistic technology landscape, thereby fostering a competitive digital environment that promotes innovation and protects consumer interests.

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May 2025 | Paul Gerstle | Note |

The no-trade clause, which, in the simplest of terms, allows a player to block his organization from trading him, is somewhat of a unicorn in NBA contractual circles. It has been sparsely used in the National Basketball Association (NBA) history, and there are certainly some good reasons for this. Allowing a player to control his fate without any potential for a trade puts his team in a straitjacket. Thus, teams have long kept their distance from the no-trade clause, with only ten players in NBA history having a no-trade clause in their contract. Most of these players have been legends within their respective organizations: long-tenured players who simply wish to one day retire with the teams on which they have spent the majority of their careers.

As the average salary of an NBA player has ballooned over the past few years, teams have been forced to give maximum contracts to retain their best talent, regardless of whether that player is deserving of a maximum contract. This has led to a newfound loyalty problem: with maximum contracts becoming more and more the norm, what can teams offer their franchise player(s) that will incentivize them to stay if they can get a maximum contract anywhere? The answer is the no-trade clause, which gives players a unique contractual provision that they cannot get on other teams. The aforementioned problems that are associated with the no-trade clause remain, but certain teams would be wise to consider exercising this option for young players whom they see as franchise figureheads for years to come. This Note investigates the history of the no-trade clause in the NBA, its use in other sports leagues, and the potential implications of its expanded use moving forward. This Note argues for the no-trade clause to be entrenched as a more common contractual provision, serving as an additional tool for both teams and players alike to consider when at the negotiating table. As a part of this solution, this Note advocates for changes to the NBA Collective Bargaining Agreement that will give teams more flexibility in choosing to whom they wish to give no-trade clauses. Should these changes be made, this Note identifies the player archetype to which teams should consider giving no-trade clauses.

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May 2025 | Tyler Gottlieb | Note |

Since its legalization, sports betting has experienced rapid growth, both in terms of economic output and expansion into more states. The current system of sports betting in the United States requires individuals to place bets using a sportsbook. The sportsbook sets the lines on every bet. If an individual wins their bet, the sportsbook pays them money according to the listed odds. If an individual loses their bet, the sportsbook keeps the amount staked. Sportsbooks set lines in a way to ensure that on average, they make money on every bet. This system has been widely accepted, often based on the common understanding that “the house always wins.” When the house wins, the individual loses. Sports betting in its current state is riddled with pricing inefficiencies that can be best remedied by treating sports betting as a market in which individuals can buy and sell bets. By reimagining the way sports betting is regulated, a system can be created where individuals can place bets at fair prices and be rewarded with gains based on superior ability. By thinking of sports betting like a capital market, it becomes clear how flawed the current system is, and we can draw inspiration from other capital markets to create a vision of an efficient sports-betting marketplace that protects investors instead of exploiting them.

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May 2025 | Michael E. Ten Eyck | Note |

In recent years, the California Invasion of Privacy Act (CIPA) has been used to sue website-holding companies for utilizing chat bots that record online conversations. Such claims have already generated high-profile class actions and multidistrict litigations, with many more expected. Because CIPA violations often occur writ large when websites retain data from their chat boxes, and the statute imposes relatively high damages, there exists an incentive for plaintiffs’ attorneys to seek out aggregated claims, generating time-consuming litigation. Meanwhile, the harms suffered by those bringing suit fall under the category of intangible privacy harms. The US Court of Appeals for the Ninth Circuit’s case law regarding standing shows a broader allowance for potentially nominal harms. This differs from the US Supreme Court’s norm following TransUnion LLC v. Ramirez’s emphasis on an injury’s concreteness to confer standing. While recent decisions show that the effectiveness of CIPA in chatroom-type class actions is limited, at least one court has found a CIPA plaintiff to have standing absent any seemingly concrete harm.

This Note describes the potentially illusory claims giving rise to mass litigation in California federal courts. It then analyzes the common injuries under a proposed reading of TransUnion that denies standing to most intangible harms. It ultimately concludes that appellate review should compel the revival of limited standing applied to intangible, digital harms in the Ninth Circuit. However, the TransUnion decision may rest on shaky Constitutional ground. Justice Thomas has advanced a dissenting view, rooted in history, which emphasizes the nature of the rights at issue. This view might have gained traction with a more originalist judiciary and could eventually prevail. While Justice Thomas’s view would allow seemingly frivolous suits for statutory damages, this Note argues it could also inform legislatures about the best ways to frame causes of action when they aim to protect digital privacy rights.

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