Date: October 9, 2026 (Friday)
Time: 5pm – 6pm
Venue: Room 824, 8/F Cheng Yu Tung Tower, The University of Hong Kong
Speaker: Timothy Tau Hsieh (Visiting Law Professor, Peking University School of Transnational Law)
Generative artificial intelligence has reopened one of copyright law’s oldest questions—what counts as harm to a “potential market”—under conditions the drafters of the Copyright Act of 1976 could not have anticipated. Two 2025 opinions from the Northern District of California, Kadrey v. Meta Platforms, Inc. and Bartz v. Anthropic PBC, agree that training large language models on copyrighted books is “exceedingly transformative,” yet disagree sharply about what that transformation means for the fourth statutory factor: “the effect of the use upon the potential market for or value of the copyrighted work.” A third opinion, Thomson Reuters Enterprise Centre GmbH v. Ross Intelligence Inc., now on appeal to the Third Circuit, rejected fair use altogether where the defendant’s AI tool competed directly with the plaintiff’s product. This Article argues that the doctrinal fault line running through these cases is not transformativeness but market structure, and that courts lack a rigorous framework for identifying the markets generative AI actually threatens. Borrowing the submarket methodology the Supreme Court developed for antitrust merger review in Brown Shoe Co. v. United States, this Article contends that “AI slop”—the mass-produced, low-quality expressive output that has become a defining feature of the generative AI economy—already constitutes a legally cognizable submarket of expressive goods, and that the same seven Brown Shoe indicia reveal a second, more urgent phenomenon: the rapid convergence of frontier generative systems with premium creative markets that were, until recently, assumed immune to AI substitution. The Article closes with proposals for how courts and Congress might operationalize a submarket-sensitive fourth factor, including evidentiary presumptions, transparency requirements, and collective-licensing alternatives modeled in part on the European Union’s text-and-data-mining regime.
Professor Timothy Tau Hsieh received his B.S. in Electrical Engineering & Computer Science from UC Berkeley, a M.S. in Electrical Engineering from UCLA, a J.D. from UC Law SF, a LLM from Berkeley Law and an LLB from the University of London. He has over 20 years of experience as a law professor, multiple federal judicial law clerk, associate attorney at Am Law 100 law firms, partner at IP boutiques, and a patent examiner with the USPTO, where he was also Editor in Chief of the Journal of the Patent and Trademark Office Society, the oldest IP journal in America frequently cited by U.S. Supreme Court Justices. He founded Dr. Law (askdrlaw.com), a company committed to empowering law students and attorneys to manifest their goals.
Moderator: Taorui Guan, Assistant Professor & Deputy Director of the Law and Technology Centre, The University of Hong Kong Faculty of Law
To register, please go to https://hkuems1.hku.hk/hkuems/ec_regform.aspx?guest=Y&UEID=109654.
For inquiries, please contact Ms. Grace Chan at / 3917 4727.