This bit from Reno’s a pretty solid pointer to when things went south
Blake E. Reid
@chup.blakereid.org
5.5K followers 1.1K following 1.1K posts
Simple country tech law professor, multidisciplinary dilettante, “idea generator.” Crocs, fizzy water, ska. Someone is wrong on the Internet and it’s probably me. No legal or good advice; opinions my own, bad. Supposed to be on posting hiatus.
![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](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:3h2rnhl4eqtoylezk6572ec2/bafkreibq3b4tw2lfbqmqvyydzad5bpzjaqfrj3b7vmv5t34ydaoxg6oytq)
![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](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:3h2rnhl4eqtoylezk6572ec2/bafkreier3ljsfsyq76ykciqu7h6uquzrotczexbla6sc74omnnyzvxgtfe)
![(1991) (“The compilation author typically chooses which facts to include, in what order to
place them, and how to arrange the collected data so that they may be used effectively by
readers. These choices as to selection and arrangement, so long as they are made
independently by the compiler and entail a minimal degree of creativity, are sufficiently
original that Congress may protect such compilations through the copyright laws.”); Derek E.
Bambauer, Copyright = Speech, 65 EMORY L.J. 199, 200 (2015) (“if expression can be
copyrighted, . . . then that expression is speech that enjoys First Amendment protection.”). But
cf. NetChoice, 603 U.S. at 746 (Barrett, J., concurring) (“[W]hat about AI, which is rapidly
evolving? What if a platform’s owners hand the reins to an AI tool . . . ?”); Thaler v. Perlmutter,
687 F. Supp. 3d 140, 149 (D.D.C. 2023) (“The increased attenuation of human creativity from
the actual generation of the final work will prompt challenging questions regarding how
much human input is necessary to qualify the user of an AI system as an ‘author’ of a
generated work . . .”). Then again, cf. Toni M. Massaro, Helen Norton, & Margot Kaminski,
Siri-Ously 2.0: What Artificial Intelligence Reveals About the First Amendment, 101 MINN. L. REV.
2481 (2017) (“Current free speech theory and doctrine support the extension of free speech
rights to strong AI speakers”). But cf. Eugene Volokh, Mark A. Lemley, Peter Henderson,
Freedom of Speech and AI Output, 3 J. FREE SPEECH L. 651, 651 (2023) (“[C]urrent AI programs
are of course not people and do not themselves have constitutional rights, [but] their speech
may potentially be protected because of the rights of the programs’ creators.”). Perhaps the
expressive ontology of internet platforms belongs on the long list of problems that copyright
cannot solve. See Reid, What Copyright Can’t Do, supra note 385. Thanks to Margot Kaminski
for the insight.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:3h2rnhl4eqtoylezk6572ec2/bafkreigqficfpbzjyrlibhgx3de2b4dwile2x6i75jth6txzbccgmrniyq)
![6. As Register of Copyrights, by statute, I act under the Librarian of Congress’s
supervision and direction. Since May 8, 2025, when President Trump fired Librarian of Congress
Carla D. Hayden, I have acted under the supervision and direction of Robert R. Newlen, who
replaced Dr. Hayden as acting Librarian in accordance with the Library of Congress’s regulations.
7. On May 9, 2025, the U.S. Copyright Office issued in pre-publication format, the
long-awaited Part 3 of Copyright and Artificial Intelligence, a report made pursuant to my statutory
responsibility to “[c]onduct studies . . . regarding copyright” and “[a]dvise Congress on national
and international issues relating to copyright.” 17 U.S.C. § 701(b)(1), (b)(4).](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:3h2rnhl4eqtoylezk6572ec2/bafkreieb7nd5hvbm2svppelbmkwpg33a5ywbs5ttzma7kj3ps7vibfpo5m)
![Instead, Defendants rest their conclusion primarily on analogy. (Doc. 98 at 6–
8). Defendants analogize interactions with Character A.I. Characters to interactions
with NPCs (non-player characters) in video games and interactions with other
persons on social media sites—both of which have received First Amendment
protection. (Id. at 8); see Brown v. Ent. Merchs. Ass’n, 564 U.S. 786 (2011); Moody
v. NetChoice, LLC, 603 U.S. 707 (2024); see also Wilson v. Midway Games, Inc.,
198 F. Supp. 2d 167, 181 (D. Conn. 2002) (“While video games that are merely
digitized pinball machines are not protected speech, those that are analytically
indistinguishable from other protected media, such as motion pictures or books,
which convey information or evoke emotions by imagery, are protected under the
First Amendment.”); Watters v. TSR, Inc., 715 F. Supp. 819, 821 (W.D. Ky. 1989)
(“[First Amendment] protection extends to publications such as ‘Dungeons and
Dragons,’ whether they are disseminated for the purpose of informing the public or
merely for providing entertainment.”). Defendants however do not meaningfully
advance their analogies.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:3h2rnhl4eqtoylezk6572ec2/bafkreihwuwrv24o54hf3er37bjwa2juf54cho5nop65qzt2b4v6lrt7ywe)
![received First Amendment protections; rather, the decision turns on how Character
A.I. is similar to the other mediums. See Brown, 564 U.S. at 790; Moody, 603 U.S.
at 729–30. For example, in holding that video games receive First Amendment
protection, the Supreme Court reasoned:
Like the protected books, plays, and movies that preceded them, video games
communicate ideas—and even social messages—through many familiar literary
devices (such as characters, dialogue, plot, and music) and through features
distinctive to the medium (such as the player’s interaction with the virtual world).
That suffices to confer First Amendment protection.
Brown, 564 U.S. at 790. Similarly, in recognizing that editorial functions of social
media sites receive First Amendment protections, the Supreme Court reasoned:
A private party’s collection of third-party content into a single speech product (the
operators’ “repertoire” of programming) is itself expressive, and intrusion into that
activity must be specially justified under the First Amendment. . . . [However,] a
First Amendment claim will not succeed when the entity objecting to hosting third-
party speech is not itself engaged in expression.
Moody, 603 U.S. at 729–30.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:3h2rnhl4eqtoylezk6572ec2/bafkreicsr75h3f67gyhbrbh34j4ytoodnurmm5on6t5able254khb575h4)
![16. With greater frequency, courts are now regularly evaluating the
conduct of lawyers and pro se litigants who improperly use AI in submissions
to judges. Whether that conduct supports the imposition of various types of
sanctions requires a fact- and circumstance-specific analysis. See, e.g., United
States v. Hayes, ___ F.Supp.3d ___, 2025 WL 235531 at *10-15 (E.D. Cal.
Jan 17, 2025) (sanctioning criminal defense lawyer for using AI; when
questioned by the court, the lawyer’s response about the source of inaccurate
legal citations “was not accurate and was misleading”); Saxena v. Martinez-
Hernandez, 2025 WL 1194003 at *2 and n.5 (D. Nev. April 23, 2025)
(“Saxena’s use of AI generated cases – and his subsequent refusal to accept
responsibility for doing so – is just another example of Saxena’s abusive
litigation tactics, and further explains why the court issued case-terminating
sanctions”) (collecting cases); United States v. Cohen, 724 F.Supp.3d 251, 254,
259 (S.D.N.Y 2024) (declining to find bad faith where defense lawyer
voluntarily disclosed that she “had been ‘unable to verify’” false citations in
colleague’s brief and lawyer acknowledged that he “would have withdrawn the
[fake] citations immediately if given the opportunity”).](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:3h2rnhl4eqtoylezk6572ec2/bafkreignva3i6jgdizzfwl3hefus3vs3fvzcewo5x3gnvrj7zct4bxqimm)
![While the plaintiff is correct that the Library is codified under Title 2 of the United States Code, which addresses specifically the Legislative Branch, the court in Eltra found this irrelevant, holding that "such code-grouping cannot determine whether a given function is executive or legislative." 579 F.2d at 301. Moreover, the court in Eltra also noted that "[t]he Librarian performs certain functions which may be regarded as legislative (i.e., Congressional Research Service) and other functions (such as the Copyright Office) which are executive or administrative," and "[b]ecause of its hybrid character, it could have *43 been grouped code-wise under either the legislative or executive department." Id. But, the court found "such code-grouping" not to be dispositive, concluding "that the Copyright Office is an executive office, operating under the direction of an Officer of the United States and as such is operating in conformity with the Appointments Clause." Id.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:3h2rnhl4eqtoylezk6572ec2/bafkreigcghqtrpqwqptyzhhib5sdywxw2z5xutkaj2gne5ekwdyjojy3jm)
![28. Some courts have concluded that the Office is part of the legislative branch. See, e.g.,
United States v. Brooks, 945 F. Supp. 830, 834 (E.D. Pa. 1996) (“[T]he Copyright Office is
part of the legislative branch.”); Harry Fox Agency, Inc. v. Mills Music, Inc., 720 F.2d 733,
736 (2d Cir. 1983) (“[T]he Library of Congress . . . is a part of the legislative branch
itself . . . .”); Barger v. Mumford, 265 F.2d 380, 382 (D.C. Cir. 1959) (“[T]he Library of
Congress has long been treated as being in or under the jurisdiction of the legislative
branch . . . .”). Other courts have deemed the Office executive in nature. See, e.g., Eltra Corp.
v. Ringer, 579 F.2d 294, 301 (4th Cir. 1978) (“[T]he Copyright Office is an executive
office . . . .”); Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1342
(D.C. Cir. 2012) (discussing why the Library of Congress “is undoubtedly a ‘component of the
Executive Branch’ ”). Acknowledging that “it is not clear whether the Library of Congress is
part of the executive or legislative branch,” the Ninth Circuit explicitly avoided the question
in Fox Television Stations, Inc. v. Aereokiller, LLC, 851 F.3d 1002, 1013 n.4 (9th Cir. 2017) (noting
that if it were to decide what level of deference the Office is owed, the court “would be
required to rule on constitutional questions that could have outsized consequences relative to
this case—such as determining whether the Library of Congress is a legislative or executive
agency”).](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:3h2rnhl4eqtoylezk6572ec2/bafkreicudcu3ne65ehwncwuixfyvxp2gg2p7kmyf6imxielyorjlhre62e)
![29. Senator Orin Hatch, for example, has maintained that “the Copyright Office is in the
legislative branch of the Government, [and] whenever [it] is tasked with an executive-type
function, [a] constitutional question arises.” See John Duffy, Peter Strauss & Michael Herz,
Copyright’s Constitutional Chameleon, CONCURRING OPINIONS (May 17, 2013),
https://concurringopinions.com/archives/2013/05/copyrights-constitutional-chameleon
.html#more-74811 [https://perma.cc/NU7E-UUCQ]; see also H.R. REP. NO. 105-796, at 77
(1998) (Conf. Rep.) (referring to the Office as “a hybrid entity that historically has performed
both legislative and executive or administrative functions” and as “a legislative branch
agency”).
30. A 1996 Office of Legal Counsel memo cautioned that entities such as the Library of
Congress, “exercise authority that seems incompatible or at least difficult to reconcile with the
Supreme Court’s anti-aggrandizement decisions.” Constitutional Separation of Powers
Between the President and Cong., 20 Op. O.L.C. 124, 172 (1996).](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:3h2rnhl4eqtoylezk6572ec2/bafkreidynvolgykmek4ksdkoovibs66fawlhuurozcqg2gz4t64qvsr55a)