Apple Finally Defeats Dumb Diverse Emoji Lawsuit One Year Later
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Roughly a year ago, we discussed a wildly silly lawsuit brought against Apple by a company called Cub Club and an individual, Katrina Parrott. At issue were "diverse emojis", which by now are so ubiquitous as to be commonplace. Parrott had created some emojis featuring more diverse and expansive color/skin tones. And, hey, that's pretty cool. The problem is that, after she had a meeting with Apple about her business, Apple decided to simply incorporate diverse skin tones into its existing emojis. The traditional yellow thumbs up hand suddenly came with different coloration options. Cub Club and Parrott sued, claiming both copyright and trademark infringements.We said at the time we covered Apple's motion to dismiss that there was very, very little chance of this lawsuit going anywhere. The trademark portion was completely silly, given that Apple wasn't accused of any direct copying, but merely of copying the idea of diverse emojis. Since ideas aren't afforded copyright protection, well, that didn't seem like much of a winner. The trade dress claims made even less sense, since they were levied over the same content: Apple's diverse emojis. The argument from Parrott was that Apple having diverse emojis would confuse the public into thinking it had contracted with Cub Club. But that isn't how the law works. The thing you're suing over can't be a functional part of the actual product. In this case, that's literally all it was.And so it is not particularly surprising that I'm able to up date you all that the court has dismissed the case a year later.Apple Inc convinced a California federal judge on Wednesday to throw out a lawsuit accusing the tech giant of ripping off another company's multiracial emoji and violating its intellectual property rights.Cub Club Investment LLC didn't show that Apple copied anything that was eligible for copyright protection, U.S. District Judge Vince Chhabria said.Chhabria gave Cub Club a chance to amend its lawsuit but said he was "skeptical" it could succeed based on several differences between its emoji design and Apple's. The analysis you'll see in the order embedded below basically follows our previous analysis. On the copyright claim, the judge points out that the idea of diverse emojis cannot be copyrighted and, since the accusation about similarity between the emojis themselves is made in an area where very little differences could exist, this doesn't amount to copyright infringement.Chhabria said in a Wednesday order that even if the complaint was true, Apple at most copied Cub Club's unprotectable "idea" of diverse emoji."There aren't many ways that someone could implement this idea," Chhabria said. "After all, there are only so many ways to draw a thumbs up." Exactly. As to the trade dress portion of this, well, there again the court found that the trade dress accusation concerned non-protectable elements.To state a claim for trade dress infringement, a plaintiff must allege that “the trade dress is nonfunctional, the trade dress has acquired secondary meaning, and there is substantial likelihood of confusion between the plaintiff’s and defendant’s products.” Art Attacks Ink, LLC v. MGA Entertainment Inc., 581 F.3d 1138, 1145 (9th Cir. 2009). The trade dress alleged in the complaint is functional. The asserted trade dress consists of “the overall look and feel” of Cub Club’s “products,” including “the insertion of an emoji into messages . . . on mobile devices by selecting from a palette of diverse, five skin tone emoji.” This is functional in the utilitarian sense... Again, right on point.At the end of the day, while it's true that's it's easy to point at any civil lawsuit and call it a money grab, it's hard to see how this one isn't. There's simply nothing in any of this that's particularly unique or novel, even though I grant that it's a good thing there is more representation options in emojis.
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posted at: 12:00am on 24-Feb-2022
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Clearview Pitch Deck Says It's Aiming For A 100 Billion Image Database, Restarting Sales To The Private Sector
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Clearview AI -- the facial recognition tech company so sketchy other facial recognition tech companies don't want to be associated with it -- is about to get a whole lot sketchier. Its database, which supposedly contains 10 billion images scraped from the internet, continues to expand. And, despite being sued multiple times in the US and declared actually illegal abroad, the company has expansion plans that go far beyond the government agencies it once promised to limit its sales to.A Clearview pitch deck obtained by the Washington Post contains information about the company's future plans, all of which are extremely concerning. First, there's the suggestion nothing is slowing Clearview's automated collection of facial images from the web.The facial recognition company Clearview AI is telling investors it is on track to have 100 billion facial photos in its database within a year, enough to ensure “almost everyone in the world will be identifiable,” according to a financial presentation from December obtained by The Washington Post. As the Washington Post's Drew Harwell points out, 100 billion images is 14 images for every person on earth. That's far more than any competitor can promise. (And for good reason. Clearview's web scraping has been declared illegal in other countries. It may also be illegal in a handful of US states. On top of that, it's a terms of service violation pretty much everywhere, which means its access to images may eventually be limited by platforms who identify and block Clearview's bots.)As if it wasn't enough to brag about an completely involuntary, intermittently illegal amassing of facial images, Clearview wants to expand aggressively into the private sector -- something it promised not to do after being hit with multiple lawsuits and government investigations.The company wants to expand beyond scanning faces for the police, saying in the presentation that it could monitor “gig economy” workers and is researching a number of new technologies that could identify someone based on how they walk, detect their location from a photo or scan their fingerprints from afar. Clearview is looking for $50 million in funding to supercharge its collection process and expand its offerings beyond facial recognition. That one thing it suggests is more surveillance of freelancers, work-from-home employees, and already oft-abused "gig workers" is extremely troubling, since it would do little more than give abusive employers one more way to mistreat people they don't consider to be "real" employees.Clearview also says its surveillance system compares favorably to ones run by the Chinese government… and not the right kind of "favorably."[Clearview says] that its product is even more comprehensive than systems in use in China, because its “facial database” is connected to “public source metadata” and “social linkage” information. Being more intrusive and evil than the Chinese government should not be a selling point. And yet, here we are, watching the company wooing investors with a "worse than China" sales pitch. Once again, Clearview has made it clear it has no conscience and no shame, further distancing it from competitors in the highly-controversial field who are unwilling to sink to its level of corporate depravity.Clearview may be able to talk investors into parting with $50 million, but -- despite its grandiose, super-villainesque plans for the future -- it may not be able to show return on that investment. A sizable part of that may be spent just trying to keep Clearview from sinking under the weight of its voluminous legal bills.Clearview is battling a wave of legal action in state and federal courts, including lawsuits in California, Illinois, New York, Vermont and Virginia. New Jersey’s attorney general has ordered police not to use it. In Sweden, authorities fined a local police agency for using it last year. The company is also facing a class-action suit in a Canadian federal court, government investigations in Canada, Sweden and the United Kingdom and complaints from privacy groups alleging data protection violations in France, Greece, Italy and the U.K. As for its plan to violate its promise to not sell to commercial entities, CEO Hoan Ton-That offers two explanations for this reversal, one of which says it's not really a reversal.Clearview, he told The Post, does not intend to “launch a consumer-grade version” of the facial-search engine now used by police, adding that company officials “have not decided” whether to sell the service to commercial buyers. Considering the pitch being made, it's pretty clear company officials will decide to start selling to commercial buyers. That's exactly what's being pitched by Clearview -- something investors will expect to happen to ensure their investment pays off.Here's the other… well, I don't know what to call this exactly. An admission Clearview will do whatever it can to make millions? That "principles" is definitely the wrong word to use?In his statement to The Post, Ton-That said: “Our principles reflect the current uses of our technology. If those uses change, the principles will be updated, as needed.” Good to know. Ton-That will adjust his company's morality parameters as needed. Anything Clearview has curtailed over the past two years has been the result of incessant negative press, pressure from legislators, and multiple adverse legal actions. Clearview has done none of this willingly. So, it's not surprising in the least it would renege on earlier promises as soon as it became fiscally possible to do so.
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posted at: 12:00am on 24-Feb-2022
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