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AI’s Broken Legal Shield

Plus: Twilio's CEO can't outlast activist investors, who can't sit still. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌
 
January 9, 2024
 
 
 
 
 
 

Good morning.

Apple may want to sunset its sunset strategy. 

The iDevice giant finally began making payments following a long-running class-action lawsuit that accused it of deliberately slowing the performance of older iPhone models. Apple says the forced brake-tapping was aimed to offset the effect of decaying batteries — and not some insidious planned obsolescence scheme to bully consumers into expensive upgrades. Still, the company settled the lawsuit in 2020, citing the ongoing costs of litigation, and now complainants are receiving about $92 each from a $500 million pot. Or, by our arithmetic, enough to cover about 9% of the cost of a newer, faster (for now) iPhone 15.

 
 
ARTIFICIAL INTELLIGENCE
Big Tech's Legal-Shield Promises Are All About Keeping Customers In-House

Maybe the bots don't have us covered. 

The companies offering AI tools have promised they would bear the cost of any legal burden arising from copyright disputes over the content their tools produce. However, analysis from the Financial Times shows that their protection only goes so far.

Protection Racket

The FT found that legal shield promises by Amazon, Microsoft, and Google only apply if the user doesn't alter the platforms' AI. If the user even slightly tinkered with the chatbots  — to customize it, for example — the legal protection would be voided. Crucially, the cloud platforms only protect their own tools, so you can't use Amazon servers with a Google AI image-generator and expect Amazon to help if somebody spins up a fake Picasso.

"There is a growing backdrop of IP infringement actions being taken against leading technology vendors," Akber Datoo, member of the UK Law Society's Technology and Law Committee, told The Daily Upside. "For now, it appears that there is little direct action against the users (as opposed to the vendors) of the tools, although that may be on the horizon. Discussions with corporates on their use of generative AI consistently shows that the IP-related legal risk regarding its use is their biggest concern."

The promises of legal protection seem like a play to make sure clients stay in-house, but cloud services aren't the only ones selling it: 

  • OpenAI and Adobe have made similar promises, and OpenAI even requires users to be a commercial customer to benefit from its "copyright shield." If you used the free version of Chat-GPT, then Sam Altman simply isn't your white knight.
  • Getty Images also offered support against lawsuits for anyone who used its generative AI image-maker. Meanwhile, Getty is itself suing generative AI company Stability AI, so it's kind of playing both sides.

Datoo also thinks these promises are meant as a deterrent, as going up against Silicon Valley heavyweights and their sizable pockets is more daunting than targeting an individual user. Plus, it gives the vendors something of an escape route. "The indemnities give the technology providers control over the way in which the defense to any IP claims are run," said Datoo.  

What Goes In Must Come Out: The biggest AI copyright lawsuits so far focus on what goes into an AI model, not what comes out. While those lawsuits unfurl, OpenAI is actively lobbying the UK government to exempt it from copyright law on the basis that it would be "impossible to train today's leading AI models without using copyrighted materials," as the company said in a statement to a UK government committee, per The Telegraph's reporting.

 
 
TECHNOLOGY
Twilio CEO Resigns Amid Activist Push

Activist investors have their latest scalp. 

On Monday, Twilio CEO and co-founder Jeff Lawson said he'd step down following a protracted battle with a pair of persnickety activist investors. Whether the move works or not, one thing is clear: activist investors have never been quite this active. 

Active Measures

Silicon Valley shareholders have by and large grown tired of growth-over-profits strategery, putting companies like Twilio in their crosshairs. Revenue growth slowed in recent quarters, and the communication software company's share price has plummeted from a $435 peak in September 2021 to around $70. Asset management firms Anson Funds and Legion Partners built up stakes last year, and in November, according to a CNBC report, Anson sent a letter to the board calling for everything from divesting its data and applications business unit to selling the company altogether. And after Lawson's founder shares, which included special board voting rights, expired last year, the CEO became especially vulnerable to outside pressure.

Lawson will be replaced by CFO Khozema Shipchandler, who reportedly spearheaded a push into profitable growth for Twilio's communications business unit, its largest and most important. 

Lawson, who led the business since 2008, should at least take comfort in knowing that he's in good company of CEOs ousted by activists:

  • Activist investors waged 252 campaigns across the globe last year to oust directors or force the sale of a company, according to investment bank Lazard's annual report on activist activity. That's up 7% from 2022, and the highest mark on record.
  • That includes a record 77 campaigns launched by first-time activists, well above a five-year average of 44. Meanwhile, according to the report, a record 31% of board seats were won via proxy fights; 122 board seats were won overall in 2023, equal to the five-year average.

Activist Oroboros: The activist campaigns have spanned industries and companies small and large — especially large. Blue-chip, household-name companies like Starbucks and Salesforce have fallen into the crosshairs of investors looking to shake things up, while Bob Iger continues to stave off Nelson Peltz's relentless drive for two Disney board seats. Activist icon Carl Icahn and his public investment company Icahn Enterprises even became the target of activist short-seller Hindenburg Research last year. Sometimes the snake eats its own tail. 

 
 
BLOCKCHAIN
Asset Managers Want Bitcoin ETF Supremacy Even if They Don't Exist Yet 
Photo of Bitcoin in front of a computer screen

Wall Street is discounting their chickens before they're hatched. 

Even though the SEC has yet to decide whether to permit stock market funds that invest directly in bitcoin, asset managers are already in a pricing war to see who can offer the most attractive spot bitcoin ETFs, the Financial Times reported.

See Spot Run

The price of bitcoin, which can be highly volatile, is set on unregulated exchanges, and because of that, the SEC has argued that it can't properly protect investors.

However, regulators lost a legal battle to block a Bitcoin spot ETF application from crypto asset manager Greyscale last year. And the SEC does allow ETFs tied to bitcoin futures contracts. With that in mind and the SEC expected to make a decision this week, asset managers are fighting to be the go-to firm for bitcoin investors:

  • Grayscale said Monday it would charge a 1.5% management fee for its ETF. Despite being the one that actually pressured the SEC and helped create a legal precedent, it's facing plenty of competition from firms offering smaller fees.
  • BlackRock intends to charge customers just 0.2% of the net asset value of its fund for the first year — or until its ETF hits $5 billion in assets, before rising to 0.3%, the FT reported. Meanwhile, Ark Investment Management offered to waive fees for the first six months, or until its ETF's assets reach $1 billion.

Gary's Gripes: Though it does look like the SEC will approve bitcoin spot ETFs, Chair Gary Gensler took to X Monday to point out the risks associated with cryptocurrencies such as their volatility and their use in scams. It felt like he was saying "Alright, we'll approve it… but I'm not happy about it."

 
 
Extra Upside
 
 
Just for Fun
 
 
Disclaimer

*Disclosure: This is a paid advertisement for Infinity Fuel Cell and Hydrogen, Inc. Reg CF offering. Please read the offering circular at https://invest.infinityfuel.com/

 
 
 

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