Lipton, Weinberger & Husick

08/29/2026

Dr. Copyright Teaches the Basics

Dear Doc:
I’ve been reading a lot of copyright cases, and it seems that the ones that are in the news are variations of the argument that goes, “You made money (or got some other value) from my work, so now you owe me.” That rubs me the wrong way, but I can’t exactly put my finger on why. Can you help?
Signed,
Nothing Better To Do

Dear Nothing:

You certainly have a lot of time on your hands if you’re wondering about the philosophy of copyright, but because the Doc also spends way too much time on these issues, he is only too glad to teach copyright for dummies to make things clearer.

The “if value, then right” argument is just what you stated. Somebody uses what an originator created (a song, a writing, a play, a sculpture, a semiconductor mask, …) and benefits from that use, often without permission from the originator. The originator then says, “You owe me at least part of the value you generated with my stuff.” They disagree (usually over how much, but sometimes over whether anything at all is owed), and end up in court. The originator argues that the user deprived her of value, and should cough it up. The user argues several of many counters: that permission was implied; that the thing is in the “public domain”; that it was not properly protected under the law…

The result, much to the Doc’s delight, is that copyright lawyers get rich. Oh, and eventually, the judge and jury figure out the answer, and someone gets paid (or doesn’t).

So what’s wrong with this? Well, for starters, the United States Copyright Laws are not built on the private value proposition. Rather, our system is premised on encouraging the production of creative works. So much so that Art. I, Sec. 8, Cl. 8 of the U.S. Constitution says, “The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Now, as frequent readers of this column know, 18th Century English was not like what today passes for English, and that means that the Founders wanted to “promote the Progress of Science,” which means increase knowledge. They did this by granting exclusive rights to Authors in their Writings for a limited time. (The rest, about useful Arts, Inventors, and Discoveries, pertain to patents, and the Doc can (and probably will) expound on that stuff at a later date…, but he digresses.)

Now Congress, in its, ahem, “wisdom”, has enacted several copyright statutes (17 USC §101 et. seq.) over the years, notably expanding the “limited time” from 14 years in the early Republic to the present, practically infinite life plus a 75-year term. It has also expanded what is considered copyrightable from, naturally, writings, to today’s laundry list that includes music, sculpture, boat hulls, semiconductor masks, etc.

Under our law, if what you create does not fit into one of the statutory categories, then it’s not copyrightable. Nevertheless, people keep pushing the envelope (and Congress) to expand what’s protected. Frankly, it’s become quite a mess. And this doesn’t begin to account for the exceptions that Congress has written into the law!

The take-away here is that just because what you create has value does NOT mean that it is protected by law. This is unlike the world of physical property, where if you “borrow” my lawnmower without my permission and use it to mow your lawn, you’ve committed a tort (conversion, not a sweet pie) and possibly a crime (burglary). This is because my mower is a type of property that we lawyers call “rivalrous” (meaning that it can’t be in two places (my garage and your yard) at the same time. As opposed to “non-rivalrous” property (you can sing the song that I composed at the exact same time that I sing it). You and I may BOTH derive value from the song, and you owe me ONLY if the song is protected by law!

So there you have it (or you don’t). "If value, then right" may sound good, but it’s just not the law of the land.

Do you have some non-rivalrous intellectual property? Talk to the attorneys at LW&H. They get this stuff.

Until next month,

The “Doc”

07/31/2026

Dr. Copyright's Musings on State Law and the U.S. Supreme Court

This month, the Doc is visiting Hawai’i, where he is studying how that state’s laws differ from laws on the mainland. The Doc is learning about the “Law of the Splintered Paddle”, about how the state with the most restrictive gun laws operates, and most recently, about how Hawaiian judges view the United States Supreme Court’s approach to fundamental Constitutional rights
On June 25, 2026, the United States Supreme Court struck down a Hawai’i law that required people who wanted to bring a gun on to private property to obtain the permission of the land owner before doing so. In Wolford v. Lopez, by a 6-3 majority, the Court did the opposite of what it had set forth in the earlier Bruen decision, namely, look to the history and tradition of the state that informs the scope of Constitutional rights. In Bruen, involving a New York law, the Court found, “Historical analysis can sometimes be difficult and nuanced, but reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’”. On that basis, the Court struck down New York’s over-100-year-old law regarding concealed carry of fi****ms.

In the Wolford case, the Hawai’i Supreme Court was careful to set out the history of gun laws in Hawai’i, tracing those laws all the way back to a royal decree of King Kamehameha the Great called the “Law of the Splintered Paddle”, which was promulgated in 1797, long before Hawai’i was a territory or a state. That law was incorporated into the Hawai’i Constitution as Article IX, Section 10, which states,

Public Safety. The law of the splintered paddle, mamala-hoe kanawai, decreed by Kamehameha I--Let every elderly person, woman and child lie by the roadside in safety--shall be a unique and living symbol of the State's concern for public safety. The State shall have the power to provide for the safety of the people from crimes against persons and property.

Considering this history and constitutional provision, Justice Alito wrote, “The Second Amendment cannot give way to “the spirit of Aloha” in Hawaii.” The majority opinion thus placed the right to carry a loaded gun onto publicly-accessible property above the state’s power to provide for safety. Today, in Hawai’i, thousands of signs prohibiting the carrying of fi****ms are appearing at the entrances of businesses, public buildings, parks and other locations in response to the Supreme Court’s determination that permission must be withdrawn, rather than sought.

In an extraordinary recent opinion, Associate Justice Todd Eddins of the Hawai'i Supreme Court has now stated his view of how the originalist majority of the Supreme Court conducts its business.

When the Doc was in law school, the greatest sin a student could commit was to say that judges are outcome determinative; that is, that they decide what the result of the case should be, and then work backward and selectively to justify their desired result. This was the law school equivalent of “farting in a pew” and could get one a very bad grade. After all, law schools used the Socratic Method, where, after reading many judicial opinions, you were to deduce the underlying rationale and rule of law that knit the cases into a cohesive whole!

Contrary to the Doc’s law school experience, Justice Eddins took aim at the United States Supreme Court and let fly…

We interpret the Hawaiʻi Constitution on its own terms. The United States Supreme Court’s construction of the federal Due Process Clause does not define the protections of our state’s due process clause. This court “reason[s] independently, untethered from the Supreme Court’s analysis of the United States Constitution.” State v. Wilson, 154 Hawaiʻi 8, 14, 543 P.3d 440, 446 (2024).” Granillo v. Hawai’i, SCWC-22-0000740 15-JUL-2026.

He continues,

The Court that now defines federal due process does not honor the work of 1954 [Brown v. Board]. It revives the work of 1857 [Dred Scott]. The work of 1896 [Plessy v. Ferguson]. The Constitution must be interpreted “according to its true intent and meaning when it was adopted.” Dred Scott v. Sandford, 60 U.S. 393, 405 (1857).
What this [U.S. Supreme] Court has done to constitutional rights, democratic institutions, and the rule of law explains why Hawaiʻi’s Constitution takes no instruction from it. …This court does not anchor Hawaiʻi’s due process rights to the federal floor. Especially one that keeps sinking. We take no guidance on the meaning of due process from a court that gutted due process protections in Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).”

Rulings run in one direction, time after time. Weakening protections for those with less power. Fortifying those with more. The pattern speaks for itself. A court that systematically dismantles democratic safeguards, steamrolls constitutional liberties, and tramples human dignity does not chart the course for the Hawaiʻi Constitution. Our constitutional system was designed for times like these. Federalism is not a formality. It is the architecture. The framers built dual sovereignty into the structure of American government as an independent check against concentrated federal power. A Supreme Court driven by agenda and intent on swiping power that belongs to the people is exactly what that check was built for. When six justices walk away from those they are supposed to protect, state constitutions hold the line. That is not defiance. That is the design.

The Doc will, as they say in college, “leave the remaining material to the interested reader.” The Granillo opinion is 91 pages, and most of it concerns granting a new trial when it is later learned that evidence used in a trial is no longer scientifically valid (an outcome that is extremely rare at the U.S. Supreme Court).

So much of law is “inside baseball”, fine points and small print, that when fundamental issues are exposed to bright sunshine the Doc has more faith in the legal system as a result. He hopes that you will feel the same.

Have a legal question that needs a clear answer? Give the attorneys at LW&H a shout. They’re good at explaining, and they get things done.

Until next month,

The “Doc”

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07/02/2026

Ask Dr. Copyright® About AI Chatbots

Dear Doc:

I read that putting information into an artificial intelligence (AI) chatbot such as ChatGPT can break attorney-client privilege in some instances. Are there other things that we should worry about when we use AI?

Signed,
Concerned Person Who is Definitely Not a Robot

Dear CP:

The case you read about is United States v. Heppner. In that case, Judge Rakoff of the United States District Court for the Southern District of New York ruled against attorney-client privilege in information input to a public AI chatbot. The client asked Claude for answers about a legal matter. Judge Rakoff found that “Claude is not an attorney.” (Duh, says the Doc!) and thus whatever Claude was told was not protected by attorney-client privilege. But the Judge went even further, finding that the information was neither “intended to be,” nor was it “in fact,” “kept confidential.” He also determined that “Heppner could have had no ‘reasonable expectation of confidentiality in his communications with Claude.” Finally, he ruled that the use of Claude was not “for the purpose of obtaining legal advice.”

The bottom line here is that while your attorney may, in some instances, use a specialized legal AI system in her work, you, as her client, had better not put your confidential information into a chatbot.

The Doc takes this even further… every confidentiality and nondisclosure agreement (NDA) must now be revised because AI is becoming ubiquitous in business. Some organizations put every word that is written, typed or spoken into an AI system. If your confidential information, shared under an NDA, ends up in such a system and may thus used to train the AI itself, any hope of it remaining secret may instantly vanish. Thus, your NDA should specifically prohibit loading such confidential information into both public and corporate AI repositories. Complying with such a prohibition may prove exceptionally difficult for certain organizations, so counsel should be on the lookout for inadvertent disclosures.

Tools including ChatGPT, Microsoft Copilot, Claude and Google Gemini have become as routine as email in many professional organizations. As one important example, consider the common practice in the field of mergers and acquisitions of having a “data room”, which is a shared repository of documents used in the due diligence evaluation of the proposed transaction. In these deals, associates use large language models to summarize due diligence materials. Analysts construct financial projections using AI-powered platforms to test their underlying assumptions. Real estate brokers use chatbots to draft lease abstracts or compare sales data.

Most NDAs in use today were drafted before AI appeared. Their confidentiality obligations typically restrict disclosure to "third parties" or limit use to a defined “purpose.” The agreements were written with human recipients in mind—employees, advisors, affiliates—and sometimes require that those recipients be bound by obligations of confidentiality. The agreements do not address the involvement of machines. When a professional inputs deal-sensitive information into an AI tool, that information leaves the organization's control and enters a third-party system. This may constitute a breach of the agreement. The information is shared outside the circle of permitted recipients, transmitted to infrastructure owned and operated by a technology company, and becomes subject to that company's terms of service, which the disclosing party never agreed to.

What is needed is a new generation of NDA provisions designed specifically to address AI-related disclosure risks. These provisions typically include one or more of the following:

• Express prohibitions on inputting confidential information into any AI tool, whether or not the tool trains on user inputs.
• New definitions of disclosure that expressly encompass submission of information to automated systems, machine learning models, or AI-powered platforms.
• Provisions for enterprise AI tools that maintain strict data isolation, disable training on user inputs, and comply with strict security standards.
• Representations regarding internal AI policies, requiring the receiving party to confirm that it maintains organizational controls governing employee use of AI tools in connection with confidential information.

If your standard NDA does not contain provisions governing these AI-related issues, it’s time to revise them. Give the attorneys at LW&H a call to get started.

Until next month,

The “Doc”

06/02/2026

Ask Dr. Copyright® About Taylor Swift's Voice

Dear Doc:

I could swear that I have seen Taylor Swift in videos on the Internet saying that she loves some product or other, or endorsing a hotel. Please tell me that my favorite singer (and top 30 songwriter) is not so crass.

Signed,
Swifty LaCzar

Dear Swifty:

Yes, TayTay is not that crass, but lots of Internet scammers are! They are using her voice and her likeness, and AI tools to create “deepfakes” to try to profit from her reputation. But we can be fearless, because intellectual property law is coming to the rescue!

Ms. Swift recently filed two “sensory mark” trademark applications for audio clips and one image of ‌herself to use in going after the fakers. In one of the audio clips, she says: "Hey, it's Taylor Swift, and you can listen to my new album, ‘The Life of a Showgirl,’ on demand on Amazon Music Unlimited.” The second clip says: "Hey, it’s Taylor. My brand new album ‘The Life of a Showgirl’ is out on October 3 and you can click to pre-save it so you can listen to it on Spotify.” She also filed an image showing her onstage in a sequined outfit, pink guitar in hand.

There are state 'Right of Publicity' laws that offer limited protection against unauthorized use of a famous individual’s likeness. Trademark filings, however, may represent another kind of legal weapon. Registering a celebrity's recorded voice is a new kind of trademark registration that has not yet been tested in court. When used along side copyrights, this trademark may provide a tool to go after the deepfakes.

As the Doc has often pointed out, trademarks protect the public against confusion as to the source or origin of goods and services. By registering her own voice, Ms. Swift will be able to claim that deepfakes mislead the consumer into believing that whatever the deepfake is selling originates with, or is endorsed by her. Under trademark law, the statute of limitations, standards of proof, and damages are very different from those under copyright law, and this will likely make any lawsuit that she files much more powerful.

Is your voice or image an important asset to you? Speak now to the attorneys at LW&H who may help you file your own “sensory mark” trademark applications. You never know when someone will deepfake you!

Until next month,
The “Doc”

04/30/2026

Ask Dr. Copyright® About the ADA

Dear Doc:
The design of websites has become very complex, and web pages are now essential to the way companies do business. I have heard that websites are required to be accessible to people with disabilities. What does that mean?
Signed,
Honestly Accommodating

Dear HA:

Under the Americans with Disabilities Act (ADA) public-facing websites of businesses (and state/local governments) must be accessible to people with disabilities, which in practice means meeting Web Content Accessibility Guidelines (WCAG) Level AA (currently 2.1/2.2) or providing equally effective access by other means. Failure to do so can lead to Department of Justice enforcement, private lawsuits (including class actions), injunctive orders to remediate, and substantial civil penalties and legal costs, plus reputational damage.

Title III of the ADA requires that retailers, restaurants, hotels, professional offices, and other “public accommodations” must ensure that the goods and services offered on their websites are accessible to people with disabilities. Although web sites themselves are not specifically mentioned in the Act, courts have ruled that they must meet the ADA standards.

In brief, the requirements include that each website must feature “perceivable content” such as alt text for images and other non-textual information, captions for video and audio content, and sufficient contrast and resizable text to allow reading by the visually impaired. The site must also have an “operable interface” which means that it may be used, if desired, with only a keyboard (no mouse, trackpad, etc.). Flashing content (that could trigger a seizure) must be absent, and all information presented must be “understandable”, meaning that titles, headings, and links must be clear and unambiguous as to their actions. Finally, the code of the site must not interfere with the use of assistive technologies and must function compatibly across browsers and devices.

The Doc knows that all of this is a bit dense for small companies that just want a basic web page. But just imagine how much effort is required if you’re a gigantic site such as Amazon! (There is also an equivalent to the ADA in Europe: the European Accessibility Act and it is even more complicated.

So what’s a business owner to do, you ask?

A practical path to full ADA compliance includes:

• Conducting an accessibility audit using both automated tools and manual testing (including keyboard-only and screen-reader testing);

• Prioritizing fixes that remove barriers (e.g., non‑keyboard‑accessible menus, unlabeled form fields, missing alt text on critical images, and inaccessible PDFs);

• Building accessibility requirements into contracts with web developers;

• Establishing a public accessibility statement on the website, with a contact method and a defined process to respond promptly to accessibility requests.

Like many regulations, the most important thing to do is become educated, and then to take action. Reading this, you’ve taken the first step. Now make a plan. Is your site already accessible? How do you know? Use some of the testing tools linked above. Talk to your developers. Moving in the right direction is the key to avoiding enforcement actions and lawsuits.

Have a legal question about technology issues? Contact the attorneys at LW&H. They “get” this techie stuff.

Until next month,

The “Doc”

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03/31/2026

Ask Dr. Copyright® About IP Rights

Dear Doc:
Talk about whiplash! First, I read that Cox Communications (a major cable TV company and internet service provider (ISP)) got hit with a jury verdict of (best Doctor Evil impression here) ONE BILLION DOLLARS for copyright infringement committed by its subscribers. Then, just this week, I heard that the Supreme Court REVERSED that award, so Cox gets to walk away. Doc, what gives? Has the Supreme Court LOST ITS MOTHER-LOVING MIND???
Signed,
Dased & Confuzed

Dear D&C:

Let’s leave psychoanalysis of the Highest Court in the Land to the professionals (and by that, the Doc means the diverse hosts over at Fox “Everybody knows that we are just entertainment” “News”.)

On March 25, 2026, the Supreme Court of the United States reversed the Fourth Circuit’s judgment upholding contributory copyright liability in Cox Communications, Inc. v. Sony Music Entertainment, and remanded the case, in which a jury had awarded $1 billion in statutory damages. The Court held that an internet service provider (ISP) is not contributorily liable for its subscribers’ copyright infringement merely because it continued to provide service to IP addresses associated with known infringement.

Background
Cox serves abut six million internet subscribers. Sony Music and other major music copyright owners used a surveillance company, MarkMonitor, to track copyright violations down to particular IP addresses. Over a two-year period, MarkMonitor sent Cox over 163,000 notices identifying IP addresses associated with copying. Cox employed a “graduated” response system, first sending warnings, then, if copying continued, suspending service for a time, and finally for repeat offenders, terminating service. Sony told the Court that Cox terminated only thirty-two subscribers for copyright infringement during the two year period.

The jury found for Sony on both “contributory” and “vicarious liability” theories, found Cox’s infringement willful, and awarded $1 billion in statutory damages. The Fourth Circuit Court of Appeals upheld the judgment on contributory liability but reversed on vicarious liability, finding no direct financial benefit to Cox from the infringement, and it vacated the damages award for reassessment.

The Supreme Court Opinion
Justice Thomas, writing for a rare seven-Justice majority (with the other two justices even more rarely concurring in the judgment), held that contributory copyright liability requires proof that the provider intended its service to be used for infringement, which can be established in only two ways: (1) if the provider induced infringement through specific acts, or (2) if the service was tailored to infringement, meaning it is not capable of substantial or commercially significant noninfringing uses.

The Court found that Cox, “repeatedly discouraged copyright infringement by sending warnings, suspending services, and terminating accounts,” and its service “simply provided Internet access, which is used for many purposes other than copyright infringement.”

Justice Sotomayor, joined by Justice Jackson, concurred in the judgment but criticized the majority for “unnecessarily limit[ing] secondary liability.” Justice Sotomayor concurred because Cox lacked specific knowledge of who committed the infringement—it knew only which IP address was involved. In other words, it knew the address of the subscriber, but not the identity of the person using the service to copy songs—and that “informational gap” was “fatal” to the requisite intent showing. She cautioned, that by requiring independent volitional conduct such as either inducing infringement or providing an infringement-only tool, the majority’s framework arguably risks rendering the Digital Millennium Copyright Act’s “repeat infringer policy” requirements a dead letter, since an ISP would have little incentive to police repeat infringers when mere knowledge of their activity no longer triggers contributory liability.

What It All Means
This decision significantly limits knowledge-based contributory liability theories of contributory liability; copyright owners will now need to show either (i) active inducement by the ISP (such as providing instructions on how to copy) or (ii) a service specifically tailored for infringement that has no legitimate other uses. The Doc cautions that it’s still absolutely illegal and wrong to pirate music, movies and other intellectual property over the Internet. Nothing in this case changes that. For giant corporations that run the Internet, however, its nothing but good news from the Court - they effectively profit from allowing copying to continue. IP rights owners now need to track down the person in the house who’s doing the copying and that is effectively impossible.

Do you have a question about intellectual property rights? Contact the attorneys at LW&H. They keep up with the latest decisions, opinions, and just plain hallucinations from across the Internet (and remember, according to the late US Senator Ted Stephens (R-AK) “The Internet is not a big truck. It's a series of tubes.”

Until next month,

The “Doc”