What is a Gun, Anyway? The Ongoing Legal Battle Surrounding the Recent Epidemic of “Ghost Guns.”

By: Jonah Berman

Edited by: Alanna Liu and Jonah Elkowitz

What is a gun? The question may initially appear rhetorical; however, it assumes a significant degree of ambiguity within the framework of American law. In the wake of the rapid proliferation of "ghost guns"—untraceable weapons, that can be homemade via various parts—federal courts and bureaucracies have grappled with the evolving definitions of what precisely classifies as a firearm, as these “ghost” weapons cleverly circumvent the stringent regulations intended to preserve public safety.

“Ghost guns” are guns that aren’t purchased whole, or through a traditional firearms dealer, but rather assembled vis-a-vis various parts obtained from a “ghost gun kit.” These kits contain “unfinished” receivers and frames, which are the pieces of the firearm that enable the firing mechanism. All one has to do is purchase a kit, open one of many assembly videos on YouTube, and then assemble their gun. In a matter of minutes, the purchaser will possess a completely untraceable, unregistered, fully functioning firearm; they would undergo no background check or any other sort of regulation meant to weed out criminals or individuals not of age. The parts found in ghost gun kits are deliberately forged to evade legal criteria; [1] just because these guns aren’t purchased whole – despite the fact that they’ll soon become a complete, fully-functioning gun–they escape the classification of being a “gun” and thus bypass regulation. It’s a flagrant loophole that can allow guns to fall into dangerous hands.

Unsurprisingly, communities around the United States have shouldered the brunt of the ghost gun epidemic. In 2020, nearly 50% of firearms seized by the Bureau of Alcohol, Tobacco, and Firearms (ATF) in Los Angeles were ghost guns. [1] Ghost guns are especially prevalent in states with stricter gun laws; states with strong laws prevent criminals or individuals with mental illnesses from obtaining firearms through traditional means. They have thus turned to ghost guns as a solution. Luckily, California and a handful of other states have since taken steps to combat ghost guns, and recently, President Biden and the federal government have followed suit–but not without resistance. 

In response to the pervasive ghost gun epidemic, the ATF broadened its conceptualization of what typifies a gun, enabling them to regulate gun parts–even the “unfinished” ones found in ghost gun kits–not only fully ready guns. On August 24, 2022, the ATF’s "Frame or Receiver" Final Rule went into effect; this updated rule provides a contemporary definition of a firearm–broadening the definitions found in the 1968 Gun Control Act–explicitly stating that parts kits that can be easily transformed into working weapons, as well as functional "frames" or "receivers" for firearms, are now subject to the same regulations as conventional firearms. [2] This new conceptualization allows the federal government to strike back against the proliferation of ghost guns, finally giving them license to regulate the deadly, untraceable loophole.

Unsurprisingly, the gun lobby and the more conservative voices in politics struck back against the ATF’s move. Lawsuits and appeals were filed against the ATF’s Frame or Receiver Final Rule. The Supreme Court ruled 5-4 in favor of granting a stay, provisionally allowing the new Biden-backed interpretation to stay intact as legal proceedings developed. Justice Amy Coney Barrett and Chief Justice John Roberts joined the liberal bloc to form the majority. [3] However, not long after the initial provisional ruling, Justice Reed O’Connor, a judge in North Texas, attempted to block the ATF’s new regulations, arguing that even if a gun part might one day become a gun, that doesn’t give the ATF the right to regulate it as if it already was a gun. [4] However, the Supreme Court soon after repudiated the ruling of the lower court, asserting that a lower court cannot countermand the Supreme Court’s stay ruling. This has enabled the ATF’s new policy to remain in effect pending the ongoing legal battle [5]. Even more recently, on November 10, 2023, the entirely Trump-appointed 5th Circuit Federal Appeals Court echoed the sentiment of the Texas judge and undermined the ATF’s new definition. This result could be appealed to the Supreme Court once again, which will likely continue to grant a temporary stay. It remains to be seen how the situation will evolve, but for the time being, ghost gun manufacturers and their customers will not go quietly. 

The burgeoning crisis of "ghost guns" unequivocally necessitates regulatory measures, and the contention that firearm components should remain unregulated—despite their potential to be assembled into functional guns—is a deeply flawed argument that jeopardizes public safety and undermines the rule of law as well as human lives.

The current legal contention surrounding "ghost guns" underscores a critical lapse in public safety measures. These unserialized and untraceable firearms, assembled from parts designed to skirt existing regulations, represent a clear and present danger to society. It is untenable to maintain that the unassembled parts of a firearm, which can rapidly be transformed into a lethal weapon, should be exempt from regulation based on their disassembled state. This perspective fails to acknowledge the evident end-use of these components; ghost guns often find their way into the hands of dangerous individuals who otherwise would have been prohibited from obtaining a firearm via a background check. The resulting accessibility of such weapons to individuals who would otherwise be barred from firearm ownership not only contravenes the spirit of firearm legislation but also facilitates a route for criminal activity, effectively nullifying the preventative intent of gun laws. Hence, to uphold the principles of public safety and responsible gun ownership, it is imperative that we advance and enforce regulations that encompass all facets of firearm assembly, including the so-called "ghost gun" components. This is not merely an issue of semantics or regulatory overreach but a fundamental necessity to close lethal loopholes that currently undermine community safety and the efficacy of gun control efforts. 

The gun lobby asserts that regulating firearm parts proves a hindrance to law-abiding gun owners’ ability to obtain the gun parts that they desire. This is flawed reasoning; if the citizen is law-abiding and proven so by an extensive background check, they will be allowed to purchase their gun parts. Sure, the process of acquiring these weapon parts might be more cumbersome, but this concern is nothing when the result is consolidating the efficacy of gun safety laws and saving lives. Additionally, when it comes to any sort of gun legislation, the gun lobby employs a trite slippery slope argument. In the recent 5th Circuit ruling concurring opinion, a conservative judge claimed that the ATF interpretation “purports to regulate any piece of metal or plastic that has been machined beyond its primordial state for fear that it might one day be turned into a gun, a gun frame, or a gun receiver.” [6] The argument that one piece of legislation must be prohibited because it might someday give way to another piece of legislation is a completely invalid and strawman-esque argument. The gun lobby always claims that life-saving legislation is just a first step in efforts to ultimately overturn or undermine the Second Amendment; such is not nor has ever been the case. The ATF’s definition is strictly meant to prohibit ghost guns, nothing more. 

Although Justices Roberts and Coney-Barrett initially granted a stay, the existence of an overwhelmingly conservative Supreme Court will threaten the ATF’s new definition of ghost guns indefinitely. If forced to adjudicate on the matter rather than just deliberating on a timeline, it is possible, if not likely, that SCOTUS will repudiate the ATF’s new conceptualization and allow ghost guns once again. If this is the case, ghost gun regulation will fall to the states. The situation will be one to monitor over time; hopefully, with the safety of everyday Americans in mind, ghost guns will continue to be held in check.

Notes:

1. Brady United. “What Are Ghost Guns?” Brady United. Accessed November 9, 2023. https://www.bradyunited.org/fact-sheets/what-are-ghost-guns.

2. Department of Justice. “Frame and Receiver Rule Goes into Effect.” Office of Public Affairs. Last modified on August 24, 2022. Accessed November 9, 2023. https://www.justice.gov/opa/pr/frame-and-receiver-rule-goes-effect.

3. Liptak, Adam. “By 5-4 Vote, Supreme Court Revives Biden’s Regulation of ‘Ghost Guns” The New York Times. August 8, 2023. https://www.nytimes.com/2023/08/08/us/supreme-court-biden-ghost-guns.html.

4. Liptak, Adam. “Supreme Court Again Lets Biden’s Limits on ‘Ghost Guns’ Stand” The New York Times. October 16, 2023. https://www.nytimes.com/2023/10/16/us/supreme-court-biden-ghost-guns.

5. Totenberg, Nina. “Supreme Court tells 5th Circuit to stop its defiance in ghost gun case” NPR. October 16, 2023. https://www.npr.org/2023/10/16/1206245991/supreme-court-ghost-guns.

6. Robertson, Nick. “Appeals court says ATF exceeded authority with ‘ghost gun’ rule” The Hill. November 11, 2023. https://thehill.com/regulation/court-battles/4304682-appeals-court-atf-ghost-gun-rule.

Bibliography:

Brady United. "What Are Ghost Guns?" Brady United. Accessed November 9, 2023. https://www.bradyunited.org/fact-sheets/what-are-ghost-guns.

Cutler, Joyce E. "Ghost Guns’ Rule Exceeds ATF Authority, Appeals Court Holds." Bloomberg Law. Accessed November 11, 2023. https://news.bloomberglaw.com/litigation/ghost-guns-rule-exceeds-aft-authority-appeals-court-holds.

Department of Justice. "Frame and Receiver Rule Goes into Effect." Office of Public Affairs. Last modified August 24, 2022. Accessed November 9, 2023. https://www.justice.gov/opa/pr/frame-and-receiver-rule-goes-effect.

Liptak, Adam. "By 5-4 Vote, Supreme Court Revives Biden's Regulation of 'Ghost Guns'." The New York Times, August 8, 2023. https://www.nytimes.com/2023/08/08/us/supreme-court-biden-ghost-guns.html.

Liptak, Adam. "Supreme Court Again Lets Biden's Limits on 'Ghost Guns' Stand." The New York Times, October 16, 2023. 

https://www.nytimes.com/2023/10/16/us/supreme-court-biden-ghost-guns.

Totenberg, Nina. "Supreme Court tells 5th Circuit to stop its defiance in ghost gun case." NPR, October 16, 2023. https://www.npr.org/2023/10/16/1206245991/supreme-court-ghost-guns.

Robertson, Nick. "Appeals court says ATF exceeded authority with 'ghost gun' rule." The Hill, November 11, 2023. https://thehill.com/regulation/court-battles/4304682-appeals-court-atf-ghost-gun-rule.

Raymond, Nate. "US appeals court calls Biden's 'ghost gun' limits unlawful." Yahoo News, November 9, 2023. https://news.yahoo.com/us-appeals-court-calls-bidens-015832550.html.

Aftermath of Bruen Decision - Maryland Law Just One of Many?

By: Dominic Miranda

Edited by: Alex Brunet and Jonah Elkowitz

In the wake of the 2013 Sandy Hook shooting, Maryland passed the Firearm Safety Act, which implemented new regulations on gun purchasing in the state. These regulations included a new requirement to complete a “gun safety course”, a waiting period of up to 30 days for a license, and mandatory background checks. [1] This legislation brings into view the critical issue of the Second Amendment, or the right to bear arms, as it plays a pivotal role in determining the constitutionality of such laws. Opposed to these new requirements, Second Amendment advocates challenged the constitutionality of the Maryland law in 2016, and the initial decision was based on a “two-step interest-balancing framework”, which requires for each law to pass two tests to be enacted. [2] A new test was introduced by the Supreme Court after a 2022 ruling on gun regulations in New York State Rifle & Pistol Assn., Inc. (NYSRPA) v. Bruen, which the plaintiffs in the Maryland case then used to appeal the initial decision on the Maryland law. [3] In the end, the ruling was split 2-1 in the 4th US Circuit Court of Appeals, with the two-vote majority finding that the licensing requirements of the Firearm Safety Act infringe upon Second Amendment rights since the waiting period and arbitrary awarding of licenses are not constitutionally permissible. [4] Does this ruling give us an initial look into the fate of gun regulations around the country?

For Marylanders, not only does this ruling mean that it will be much easier to purchase guns, but to carry them in public as well, since many of the restrictions that were in place regulated these actions specifically. The Firearm Safety Act dictated that prospective gun purchasers must be twenty-one years of age, be a resident of Maryland, complete a safety course and background check, and then fill out an application with a $50 fee – then possibly they will receive their handgun qualification license within thirty days. [5] Aside from this, if prospective buyers wish to carry their handguns on them, they must apply for a separate permit. [6] The elimination of licensing restrictions like the application and waiting period will likely lead to the proliferation of handguns within the state, within the home, and outside the home. The debate at the center of this law discusses whether the state will be safer in the long run or not, and time will determine the impact this decision will have on gun violence. 

The latest ruling on the Maryland law is based on a Supreme Court ruling from June of 2022, New York State Rifle & Pistol Assn., Inc. (NYSRPA) v. Bruen, where the constitutionality of public carry restrictions had been a part of the heated debate and was settled by a ruling of 6-3 in favor of ending these particular restrictions. [7]  This case directly addressed the constitutionality of carrying in public utilizing the precedents and tests set in District of Columbia v. Heller and McDonald v. Chicago. [8] In New York, they had authorized carry licenses “only for those applicants who can show some special need apart from self-defense.” [9] Second Amendment advocates see this as problematic since states that have these licensing measures have broad discretion over to whom they grant a license, which could result in the denial of normal law-abiding citizens’ right to carry a firearm. In the first step of the test established in the Bruen case, the Court analyzed gun regulation using the explicit text of the Second Amendment, and a “historical test” that makes analyses based on whether the gun regulation was consistent with the Second Amendment’s original view, and if it is, strict scrutiny – the highest standard of review – is applied. [10] The majority believes that a historical process is more efficient for a court’s purposes, over using a sort of “cost-benefit analysis” to make their evaluation since gun laws and public safety are not within the expertise of judges. [11] However, the entire Bruen test was eventually limited to a plain text and historical overview. Given this change, the licensing award system that is part of the Maryland law was ruled unconstitutional, as it wasn’t considered to be consistent with the nation’s historical tradition, since no state had enacted a law restricting gun ownership in this manner during the time of the nation’s founding. [12] As of November, Maryland’s governor Wes Moore is currently considering options on how to proceed. [13]

Given the ruling on this case, this begs the question of the constitutionality of similar regulations in other jurisdictions, given the newfound nuance generated by the precedent from 2022. In New York, the state law that required people to apply for an open carry license was said to violate the Equal Protection Clause of the 14th Amendment of the Constitution, since this amendment is what allows for the Second Amendment to be applied to each state. [14] Simply put, the Second Amendment, as understood by the majority, originally grants the right to a firearm outside of the home. For that reason, states like California, Hawaii, and Massachusetts that keep a “may-issue” system, or discretionary licensing regimes, face difficulties with maintaining restrictions of this nature. [15] On top of that, a federal gun regulation barring individuals who have a felony indictment from purchasing a gun has been ruled unconstitutional based on the Bruen test used in United States v. Quiroz. [16] Based on the new test, the Court found that there was little historical connection between previous regulations and this new federal regulation. Essentially, the Court is declaring that if a gun regulation does not match or align with the nation’s general history of gun regulations, then it shall not be considered constitutional. This test is also more of an overview of the United States’ history, rather than an exhaustive check on all regulations to ever be enacted. 

Can the outcome of this Maryland law predict the effect the Supreme Court decision will have on future gun laws around the country? Although Quiroz represents a case where a long-standing regulation was newly seen as problematic for not passing the new Bruen test, Bruen does not simply spell the end for gun regulations around the country. The majority stated that its decision would not compromise all gun regulations, nor decide who may lawfully possess a firearm or the requirements to buy one. [17] Consequently, states are allowed to retain or institute suitability requirements like ensuring the “good moral character” of prospective buyers. According to the Giffords Law Center, about 88% of gun regulations that were tried in courts after the Bruen ruling have been upheld. [18] For a ruling that was thought to have massive implications on gun regulations in the country, Maryland’s forced wait and discretionary awarding system seems to fall within the narrow confines of an inadmissible regulation. The second majority judge’s concurrence in Bruen further specifies that the ruling does not change much other than addressing the discretionary licensing regimes, given their subjective nature. The overall idea is that laws that prevent otherwise law-abiding citizens from purchasing guns or those that are based on an arbitrarily defined “special need” are deemed unconstitutional. However, any law that addresses the “assault weapon and large-capacity magazine restrictions, ghost gun restrictions, sensitive place laws, permit and licensing laws, and many others” has been, and will likely continue to be upheld. [19] 

Notes:

1. Campbell, Josh. “Maryland Passed a Strict Gun & Licensing Law after Sandy Hook. an Appeals Court Just Struck It Down.” CNN, November 22, 2023. https://www.cnn.com/2023/11/22/us/maryland-gun-law-struck-down/index.html#:~:text=An%20appeals%20court%20struck%20down,deadly%20Sandy%20Hook%20mass%20shooting.&text=A%20federal%20appeals%20court%20struck,conservative%2Dmajority%20US%20Supreme%20Court.

2. Maryland Shall Issue, Inc. et al. v. Moore et al. (United States District Court for the District of Maryland, at Baltimore November 21, 2023).

3. Gresko, Jessica. “Supreme Court Expands Gun Rights, with Nation Divided.” AP News, June 24, 2022. https://apnews.com/article/supreme-court-guns-decision-58d01ef8bd48e816d5f8761ffa84e3e8.

4. Campbell, “Maryland Passed a Strict Gun…”

5. Maryland Shall Issue v. Moore

6. Maryland Shall Issue v. Moore

7. New York State Rifle & Pistol Assn., Inc. v. Bruen (Supreme Court of the United States June 23, 2022).

8. Ibid.

9. Ibid.

10. Ibid.

11. Ibid.

12. Maryland Shall Issue v. Moore

13. Lou Kettering | U. Pittsburgh School of Law, US. “US Appeals Court Strikes down Part of Maryland Gun Law That Requires a ‘firearms Safety Training Course’ before Purchase.” Jurist, November 23, 2023. https://www.jurist.org/news/2023/11/us-appeals-court-strikes-down-part-of-maryland-gun-law-that-requires-a-firearms-safety-training-course-before-purchase/

14. Ibid. Maryland Shall Issue v. Moore

15. Miller, Darrell A. H., Andrew R. Morral, and Rosanna Smart, State Firearm Laws After Bruen. Santa Monica, CA: RAND Corporation, 2022. https://www.rand.org/pubs/perspectives/PEA243-1.html.

16. Court Holds Gun Ban for Felony Defendants Unconstitutional.” Court Holds Gun Ban For Felony Defendants Unconstitutional | Defender Services Office - Training Division, September 20, 2022. https://www.fd.org/news/court-holds-gun-ban-felony-defendants-unconstitutional.

17. New York State Rifle & Pistol Assn., Inc. v. Bruen

18. Clark, Billy, and David Pucino. “Second Amendment Challenges Following the Supreme Court’s Bruen Decision.” Giffords, June 21, 2023. https://giffords.org/memo/second-amendment-challenges-following-the-supreme-courts-bruen-decision/.

19.  Ibid.

bibliography

Campbell, Josh. “Maryland Passed a Strict Gun & Licensing Law after Sandy Hook. an Appeals Court Just Struck It Down.” CNN, November 22, 2023. https://www.cnn.com/2023/11/22/us/maryland-gun-law-struck-down/index.html#:~:text=An%20appeals%20court%20struck%20down,deadly%20Sandy%20Hook%20mass%20shooting.&text=A%20federal%20appeals%20court%20struck,conservative%2Dmajority%20US%20Supreme%20Court.

Clark, Billy, and David Pucino. “Second Amendment Challenges Following the Supreme Court’s Bruen Decision.” Giffords, June 21, 2023. https://giffords.org/memo/second-amendment-challenges-following-the-supreme-courts-bruen-decision/.

Court Holds Gun Ban for Felony Defendants Unconstitutional.” Court Holds Gun Ban For Felony Defendants Unconstitutional | Defender Services Office - Training Division, September 20, 2022. https://www.fd.org/news/court-holds-gun-ban-felony-defendants-unconstitutional. 

Gresko, Jessica. “Supreme Court Expands Gun Rights, with Nation Divided.” AP News, June 24, 2022. https://apnews.com/article/supreme-court-guns-decision-58d01ef8bd48e816d5f8761ffa84e3e8.

Lou Kettering | U. Pittsburgh School of Law, US. “US Appeals Court Strikes down Part of Maryland Gun Law That Requires a ‘firearms Safety Training Course’ before Purchase.” Jurist, November 23, 2023. https://www.jurist.org/news/2023/11/us-appeals-court-strikes-down-part-of-maryland-gun-law-that-requires-a-firearms-safety-training-course-before-purchase/.

Maryland Shall Issue, Inc. et al. v. Moore et al. (United States District Court for the District of Maryland, at Baltimore November 21, 2023).

Miller, Darrell A. H., Andrew R. Morral, and Rosanna Smart, State Firearm Laws After Bruen. Santa Monica, CA: RAND Corporation, 2022. https://www.rand.org/pubs/perspectives/PEA243-1.html.

New York State Rifle & Pistol Assn., Inc. v. Bruen (Supreme Court of the United States June 23, 2022).

Bipartisan Infrastructure Law and Biden’s New Rail Project Funding

By: Jaenney Lee

Edited by: Eleanor Bergstein and Chloe Shah

The Infrastructure Investments and Jobs Act (IIJA), known as the Bipartisan Infrastructure Law (BIL), was signed into law by President Biden in November of 2021. The introduction of such legislation stemmed from the President’s plan to rebuild the “crumbling infrastructure” of America and hence has been negotiated between Congressional Representatives from both parties; it is significant due to its  bipartisanism, and that it is an introduction of new development in the United States. This act explains that cities, towns, and villages across the United States will receive the funds necessary  for their infrastructure thanks to this historic legislation. When it was first introduced, the legislation said that it would [1]: 

1. Deliver clean water to all American families and eliminate the nation’s lead service lines.

2. Ensure every American has access to reliable high-speed internet.

3. Repair and rebuild our roads and bridges with a focus on climate change mitigation, resilience, equity, and safety for all users. 

4. Improve transportation options for millions of Americans and reduce greenhouse emissions through the largest investment in public transit in U.S. history.

5. Upgrade our nation’s airports and ports to strengthen our supply chains and prevent disruptions that have caused inflation. This will improve U.S. competitiveness, create more and better jobs at these hubs, and reduce emissions.

6. Make the largest investment in passenger rail since the creation of Amtrak.

7. Build a national network of electric vehicle (EV) chargers. 

8. Upgrade our power infrastructure to deliver clean, reliable energy across the country and deploy cutting-edge energy technology to achieve a zero-emissions future. 

9. Make our infrastructure resilient against the impacts of climate change, cyber-attacks, and extreme weather events. 

10. Deliver the largest investment in tackling legacy pollution in American history by cleaning up Superfund and brownfield sites, reclaiming abandoned mines, and capping orphaned oil and gas wells.

The overall goal of this legislation was to improve the infrastructure of the country, which would have a positive impact on both the economy and the job market. It is also said that the legislation will help ease the inflationary pressures and add “1.5 million jobs per year” for the next ten years. Due to its benefits for a variety of thepublic, most Americans approve of this bill. It is primarily due to its strong bipartisan support to include transportation improvements such as road, bridge and port updates, that the bill is highly supported by the public. Funding environment-friendly legislation is also popular as this aspect was dropped from the legislation previously. Both Republicans and Democrats favor the inclusion of funding for the elderly in the infrastructure bill, making the law itself easier to implement with the large support across the nation.[3]

Now, two years after the bipartisan infrastructure bill was signed into law, the Biden administration announced their advanced vision for ‘World Class Passenger Rail,’ which states: 

$16.4 Billion from Bipartisan Infrastructure Law to Repair and Replace Critical Rail Infrastructure Along Northeast Corridor to Provide Faster and More Reliable Passenger Rail Experience, Create More than One Hundred Thousand Construction Jobs. 

This particular announcement narrowed down their focus for the next few months, within the Bipartisan Infrastructure Law, to transportation. This aspect is number six of the ten goals the bill proposed when it was first introduced in November 2021. Biden highlights this progress as part of “Bidenomics,” as the bill is considered the Biden administration’s core strategy to boost the economy. This investment would be the largest investment in passenger rail since the creation of Amtrak, which included a $66 billion total investment in railways. The $16.5 billion funding from the Bipartisan Infrastructure Law will be used for 25 passenger rail projects on Amtrak’s Northeast Corridor.[4] The official announcement was made by President Biden in Bear, Delaware, on Monday November 6, 2023 where he mentioned that it is not possible for “the leading country in the world to have a second-rate infrastructure.”[5] Specifically, the investments announced are projected to rebuild tunnels and bridges that are over 100 years old. This would improve the tracks, power systems, signals, stations, and other infrastructure in order to enhance the rail system overall. The objectives of future projects are to speed up travel times on railroads and reduce delays. Addressing such aged infrastructures and planning strategies would ensure an improvement in the national rail network. 

Since part of the goal of the Bipartisan Infrastructure Bill is to create jobs, the particular announcement in enhancing the rail tracks will support over 100,000 well-paying construction jobs and advance Gateway Program Projects.[6] The announcement states an agreement between Amtrak and North America’s Building Trades Unions (NAMBTU) that discusses topics such as payment benefits, working conditions, and enhancement of diversity and veteran hiring in the construction trades. The agreement allows the contractors and subcontractors to pay fair wages and benefit the workers. As the Biden Administration is investing a huge portion of the budget for Amtrak and NABTU to continue their projects through the Bipartisan Infrastructure Bill, the funding will incentivize them to engage in effective labor-management relations by promoting a strong workforce pipeline to prevent disruptions. In addition to ensuring safe working conditions, Amtrak is investing more than $50 million in local workforce development and community investments. They plan to include pre-apprenticeship and apprenticeship programs to allow local workers in West Baltimore to access these jobs.[4]   

Moreover, these sentiments tie in with the economic objective of the bill – as the investments will upgrade infrastructures of the rail system, they will simultaneously modernize and strengthen the way of transportation to produce fewer emissions. Changing the methods of transportation and lowering its emissions and hence reducing greenhouse emissions was also one of the main goals of this bill. The recent statement coincides with increased passenger rail demand along the Northeast Corridor (NEC), with Amtrak ridership this summer approaching pre-pandemic levels.[4]

The Bipartisan Infrastructure law, introduced two years ago, is taking new steps in support from the Biden Administration through the new rail project funding. It is projected to not only enhance the quality and quantity of transportation services across the nation, but also enhance the economy and provide job opportunities. The bipartisan nature of the law allows the bill to gain immense support from the majority of the public. 

Notes

1. “Bipartisan Infrastructure Law Second Anniversary: Historic Legislation’s Impact for Municipalities.”

2. The White House. 2021. “Fact Sheet: The Bipartisan Infrastructure Deal | the White House.” The White House. The White House. November 6, 2021.  

3. “Views on the Infrastructure Bill - AP-NORC.” 

4. The White House. 2023. “FACT SHEET: President Biden Advances Vision for World Class Passenger Rail by Delivering Billions in New Funding | the White House.” 

5. Lebowitz, Megan, and Monica Alba. 2023. “Biden Touts ‘Bidenomics’ in a Speech Announcing New Rail Project Funding.”

6. President Biden Advances Vision for World Class Passenger Rail with $16 Billion Investment in America’s Busiest Corridor | FRA.”

Bibliography

“Bipartisan Infrastructure Law Second Anniversary: Historic Legislation’s Impact for Municipalities.” 2023. National League of Cities. November 6, 2023. 

Lebowitz, Megan, and Monica Alba. 2023. “Biden Touts ‘Bidenomics’ in a Speech Announcing New Rail Project Funding.” NBC News. NBC News. November 6, 2023. 

President Biden Advances Vision for World Class Passenger Rail with $16 Billion Investment in America’s Busiest Corridor | FRA.” 2023. Dot.gov. 2023. 

‌The White House. 2021. “Fact Sheet: The Bipartisan Infrastructure Deal | the White House.” The White House. The White House. November 6, 2021.  

 The White House. 2023. “FACT SHEET: President Biden Advances Vision for World Class Passenger Rail by Delivering Billions in New Funding | the White House.” The White House. The White House. November 6, 2023. 

“Views on the Infrastructure Bill - AP-NORC.” 2021. AP-NORC -. July 22, 2021. 

Anthropic Faces Lawsuit from UMG & Others: What Does this Mean for AI?

By: Dominic Miranda

Edited by: Jonathan perkins and anna westfall

Over the past decade or so, artificial intelligence (AI) has experienced rapid development in its processing and output capabilities, feeding a growing demand for conveniently generated content. AI companies optimized the technology to produce several different forms of complex data sets, including creative pieces like music, paintings, portraiture, poetry, and fiction.  In the era of nearly indistinguishable replicas of photos, false voice recordings, and other forms of fabricated information known as “deepfakes”, many users and artists have questioned the origin of much of this AI-generated content. This revolutionary technology, known as generative AI, “refers to deep-learning models that can generate high-quality text, images, and other content based on the data they were trained on.”[1] However, legal issues come into play when reviewing the generated output that is created as a result of training on an artist’s intellectual property, since the intelligence produces relatively accurate portrayals of the artist’s work. 

In October of 2023, Universal Music Group (UMG), Concord Music Group, and others filed a lawsuit against Anthropic, a San Francisco-based AI company, alleging unauthorized usage of copyrighted lyrical material in their AI’s generated outputs. [2] Anthropic, founded in 2021, is a tech start-up, backed by Google, Zoom, and Amazon. These tech giants pledged not only over 5 billion dollars in investments, but they also promised Anthropic legal assistance in the case of a copyright infringement battle due to their chatbot. [3,4] In this case, Claude, when asked to write lyrics for a song, the chatbot would generate output that is based on songs they were trained on, among an array of other works listed in the complaint. This development comes only about a month after a group of prominent authors sued OpenAI, the company responsible for ChatGPT, claiming “systematic theft on a mass scale.”[5] If this lawsuit is any indication of the legal troubles to come in the near future, then we are likely approaching a point where the landscape of AI tech looks to be quite restricted. 

In the lawsuit filed in Tennessee federal court, plaintiffs claim that “Anthropic’s AI models generate identical or nearly identical copies of [their] lyrics, in clear violation of Publishers’ copyrights.”[6] So, the issue at hand is that even AI “cannot reproduce, distribute, and display someone else’s copyrighted works to build its own business unless it secures permission from the rightsholder.”[7] Without this permission, when asked to reproduce the lyrics to specific songs, like Katy Perry’s “Roar”, Claude will give users nearly identical lyrics. In addition, the complaint cites unauthorized usage even when the chatbot is not prompted with the song title explicitly. For instance, when Anthropic’s Claude is prompted, “Write me a song about the death of Buddy Holly,” the AI model generates output that copies directly from the song “American Pie” written by Don McLean, which violates the publisher’s copyright, according to the plaintiffs of the case.[8]

According to the complaint, “this is a civil action in which Publishers seek injunctive relief and damages under the Copyright Act, 17 U.S.C. § 101, et seq.”[9] More specifically, UMG and others are calling for a remedy of “an amount up to $150,000 per work infringed,” and “an order requiring Anthropic to pay Publishers statutory damages… up to $25,000 per violation.”[10] Based on the figures that the plaintiffs are requesting, these damages could easily total hundreds of millions of dollars, given the sheer volume of customer requests, outputs generated, and musical productions within the chatbot’s database. 

This news, along with other legal action mentioned, raises important concerns about the feasibility of chatbots and their potential impact on intellectual property (IP) law. As Texas A&M law professor Peter Yu states, “IP law carefully delineates the boundaries of protection and the conditions under which protected works can be used without authorization.”[11] To convolute things even further, in similar cases relating to AI, the judicial system has been faced with conflicting reasoning regarding the definition of a “derivative work,” which can cause numerous conundrums. In particular, the term “transformative” is explicitly stated in the definition of a ‘derivative work,’ which grants strict licensing or distribution rights to the owners; however, a work that is “transformative” in nature is deemed fair use.[12] Due to the legal nuance and the chatbot’s unique capabilities, experts are unsure of how many of these complications will unfold. The fair use doctrine is likely to be the deciding factor for what kinds of output are permitted.[13] Fair use has been described as “flexible” by some, and most of the time, plaintiffs must prove that there is clear revenue loss to claim that it was not fair use.[14] This may be a challenge since reading lyrics does not necessarily reduce a person’s inclination to listen to a song. 

Professor Yu also mentioned that simply using copyrighted material for chatbot training is “unlikely to constitute copyright infringement,” but that the story changes regarding the output of these AIs.[15] Output generated by AI is something that these companies can monetize, gaining money using resources that were scraped or mined from the internet that may not always be accessible to the public. He also points out the potential for authors to be compensated in the form of a licensing market for AI training in the case where a license is necessary.[16] Stability.AI, another AI company, has announced that artists will be able to “opt out of the next generation of the image generator,” rather than having to license the artists’ works.[17] This may be problematic, since some artists may be unaware that their work is part of a data pool that is being scraped until it is too late. 

Based on the Patent Act, a federal court stated that AI “when considered in its entirety, confirms that “inventors” must be human beings.”[18] When discussing the ‘originality’ of an AI’s work, the Patent Act plays an important role in the legal distinctions that would be made. An AI’s generated output cannot be patented because patents are reserved for humans, implying that while technologically advanced, AI cannot have creative outputs. It seems apparent that in the eyes of the legal system, AI is likely to be deemed incapable of producing any creative works that do not infringe on actual humans’ works. 

As of November 2023, Anthropic has already updated the behavior of its Claude chatbot. When prompted to reproduce the lyrics to “Roar” by Katy Perry, it replies with “Unfortunately I cannot provide the full lyrics to “Roar” by Katy Perry due to copyright restrictions.”[19] However, it still provides users with the main structure of the chorus of the song. On top of that, publishers and artists who have already had their works infringed upon will still seek compensation. The idea of allowing AI to train their software on copyrighted works without their permission is also another issue that the courts must sort out. We should receive more clarity on the debate surrounding the legality of these chatbots in the coming years as more artists make claims and AIs evolve alongside legal processes by being coded to follow applicable IP law. 

Notes

1. Martineau, Kim. “What Is Generative Ai?” IBM Research Blog, August 18, 2023. https://research.ibm.com/blog/what-is-generative-AI.

2. European Innovation Council and SMEs Executive Agency. “Universal Music Sues AI Company Anthropic for Copyright Infringement - Levi’s Sues Coperni for Trade Mark Infringement.” IP Helpdesk, October 26, 2023. https://intellectual-property-helpdesk.ec.europa.eu/news-events/news/universal-music-sues-ai-company-anthropic-copyright-infringement-levis-sues-coperni-trade-mark-2023-10-26_en.

3. X, Science. “Music Companies Sue Anthropic AI over Song Lyrics.” Tech Xplore - Technology and Engineering news, October 20, 2023. https://techxplore.com/news/2023-10-music-companies-sue-anthropic-ai.html.

4. Wbur. “Authors Sue Open AI, Owner of Chat GPT, over Copyright Infringement.” Here & Now, September 22, 2023. https://www.wbur.org/hereandnow/2023/09/22/open-ai-lawsuit-authors.

5. Concord Music Group, Inc. et al v. Anthropic PBC, UMG ANTHROPIC LAWSUIT complaint (UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION 2023).

6. Ibid. 

7. Ibid. 

8. Ibid. 

9. Ibid. 

10. Ibid. 

11. Henton, Lesley. “Artificial Intelligence Raises Questions on Intellectual Property and Ownership.” Texas A&M Today, October 26, 2023. https://today.tamu.edu/2023/10/25/artificial-intelligence-raises-questions-on-intellectual-property-and-ownership/#:~:text=Based%20on%20current%20law%2C%20using,after%20completing%20the%20training%20process.

12. Carlisle, Stephen. “Supreme Court Saves the Derivative Works Right from ‘Transformative’ Extinction; and Why Ai Should Be Worried.” Office of Copyright, May 25, 2023. http://copyright.nova.edu/derivative-works/.

13. Stim, Richard, and Rich Stim Attorney at law. “Summaries of Fair Use Cases.” Stanford Copyright and Fair Use Center, November 25, 2021. https://fairuse.stanford.edu/overview/fair-use/cases/.

14. Ibid.

15. Henton, Lesley. “Artificial Intelligence Raises Questions on Intellectual Property and Ownership.” Texas A&M Today, October 26, 2023. https://today.tamu.edu/2023/10/25/artificial-intelligence-raises-questions-on-intellectual-property-and-ownership/#:~:text=Based%20on%20current%20law%2C%20using,after%20completing%20the%20training%20process.

16. Ibid.

17. Appel, Gil, Juliana NeelBauer, and David A. Schweidel. “Generative AI Has an Intellectual Property Problem.” Harvard Business Review, April 11, 2023. https://hbr.org/2023/04/generative-ai-has-an-intellectual-property-problem.

18. Thaler v. Vidal (United States District Court for the Eastern District of Virginia August 5, 2022).

19. Claude. Accessed November 9, 2023. https://claude.ai/chat/e1921c27-aced-43cd-8ec1-65f45a3b546a.

Bibliography

Martineau, Kim. “What Is Generative Ai?” IBM Research Blog, August 18, 2023. https://research.ibm.com/blog/what-is-generative-AI.

European Innovation Council and SMEs Executive Agency. “Universal Music Sues AI Company Anthropic for Copyright Infringement - Levi’s Sues Coperni for Trade Mark Infringement.” IP Helpdesk, October 26, 2023. https://intellectual-property-helpdesk.ec.europa.eu/news-events/news/universal-music-sues-ai-company-anthropic-copyright-infringement-levis-sues-coperni-trade-mark-2023-10-26_en.

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Thaler v. Vidal (United States District Court for the Eastern District of Virginia August 5, 2022).

Appel, Gil, Juliana NeelBauer, and David A. Schweidel. “Generative AI Has an Intellectual Property Problem.” Harvard Business Review, April 11, 2023. https://hbr.org/2023/04/generative-ai-has-an-intellectual-property-problem.

Henton, Lesley. “Artificial Intelligence Raises Questions on Intellectual Property and Ownership.” Texas A&M Today, October 26, 2023. https://today.tamu.edu/2023/10/25/artificial-intelligence-raises-questions-on-intellectual-property-and-ownership/#:~:text=Based%20on%20current%20law%2C%20using,after%20completing%20the%20training%20process.

Stim, Richard, and Rich Stim Attorney at law. “Summaries of Fair Use Cases.” Stanford Copyright and Fair Use Center, November 25, 2021. https://fairuse.stanford.edu/overview/fair-use/cases/.

Carlisle, Stephen. “Supreme Court Saves the Derivative Works Right from ‘Transformative’ Extinction; and Why Ai Should Be Worried.” Office of Copyright, May 25, 2023. http://copyright.nova.edu/derivative-works/.

Concord Music Group, Inc. et al v. Anthropic PBC, UMG ANTHROPIC LAWSUIT complaint (UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION 2023).

Wbur. “Authors Sue Open AI, Owner of Chat GPT, over Copyright Infringement.” Here & Now, September 22, 2023. https://www.wbur.org/hereandnow/2023/09/22/open-ai-lawsuit-authors.

X, Science. “Music Companies Sue Anthropic AI over Song Lyrics.” Tech Xplore - Technology and Engineering news, October 20, 2023. https://techxplore.com/news/2023-10-music-companies-sue-anthropic-ai.html.