NO FAKES Act: Unpacking the New Bipartisan Bill on Digital Replicas

Senators aim to rein in digital replicas with the “NO FAKES” Act which proposes a limited federal right to control one’s likeness using some DMCA-like notice-and-takedown elements.

Guest post by Professor Justin Hughes

This week, Senators Blackburn, Coons, Klobuchar, and Tillis introduced the bipartisan “NO FAKES” Act in Congress, a bill that has been under discussion for months and is intended to provide centerpiece legislation addressing the problem of digital replicas.  The recording industry (RIAA) and the actors’ union (SAGAFTRA) have been the leading proponents of such a law.  Senate Judiciary staff led a process with those groups–and with the Motion Picture Association (MPA)–that went through a long series of drafts.  AI companies were also part of the drafting process.

  • Read the Bill: No FAKES Act text

The bill is substantively complex and structurally complicated, partly the result of so many cooks in the kitchen.  What follows here are only the bill’s basics – as well as some concerns.

The bill defines a “digital replica” as a “computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual” and then gives that individual the exclusive “right to authorize the use of the voice or visual likeness of the individual in a digital replica.”

The individual’s exclusive right applies to the “production, publication, reproduction, display, distribution, transmission of, or otherwise making available to the public, a digital replica” at least where the activity in question affects interstate commerce. 

Continue reading NO FAKES Act: Unpacking the New Bipartisan Bill on Digital Replicas at Patently-O.

Presumption of Injunction: How the RESTORE Act Aims to Re-Empower Patent Holders

by Dennis Crouch

For the vast majority of American history, a judgment of patent infringement (by a court sitting in equity) led almost directly to injunctive relief barring ongoing infringement.  This construct was flipped by the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), a case which served as the first major step of weakening patentee rights over the past two decades.  Now, a new bipartisan bill aims to restore the pre-eBay status quo. The Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive (RESTORE) Patent Rights Act of 2024, introduced by Senators Coons (D-Del.) and Cotton (R-Ark.), with a House companion bill from Representatives Moran (R-Texas) and Dean (D-Pa.), seeks to reshape and repair the availability of injunctive relief for patent holders.  As you’ll see, one nice element of the Bill is that it simply adds 1 sentence – creating a rebuttable presumption that an adjudged infringer should be subject to injunctive relief.

  • RESTORE ACT one page explainer
  • RESTORE ACT bill text

In the 19th and early 20th Century, patentees would file their suit “in equity” in order to achieve injunctive relief, requirement of case-by-case separation was largely eliminated in Federal Courts with the adoption of Federal Rules of Civil Procedure in 1938, which gave courts a combined jurisdiction over matters of law and equity.

Continue reading Presumption of Injunction: How the RESTORE Act Aims to Re-Empower Patent Holders at Patently-O.