What’s a fair use?

The media has reported that Meta (the Facebook, Instagram and WhatsApp company) has won a legal case on the use of copyrighted materials in training its AI models, that the use of copyright materials was a ‘fair use’. As often with the law, it’s a bit more complicated than that.

The case in question was Kadrey v Meta, and summary judgement was released last week (the judge, Vince Chhabria, deciding on the basis of arguments that the case did not need to go to jury trial because the plantiffs had not made a convincing case, enabling Meta to succeed in a call to dismiss it). The legal question at issue was whether the accepted abuse of copyrighted works in training AI amounts to a ‘fair use’. As well as considering fairness, the case opens a wider window on AI.

Before delving, I will note that I’ll continue to use the term AI, because it’s used in the case and the term is in general use for these emerging new technologies. But as both recent books The AI Con and AI Snake Oil (the two latest additions to my bookshelf) start off by making clear, there is no such single thing as AI. It is a catch-all term for a range of technologies – some of only very dubious effectiveness – and is really just a brand that is being deployed to raise (enormous amounts of) funding (two headlines from the Financial Times over this weekend cast light on the scale of this financing: Meta seeks $29 billion from private credit giants to fund AI data centres, and Nvidia insiders cash out $1 trillion worth of shares). The best known, and most used, of these new AI technologies are called large language models (LLMs), accurately described as stochastic parrots: models that simply put one word after another according to statistical models developed through their training.

Many legal systems favour the term fairness, and ‘fair use’ is a well-established concept in US law. The country’s Copyright Act (in 17 USC §107) clearly restricts fair use to usage “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”. It sets out four factors that should be considered in determining whether a given use is in fact fair:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Deciding what uses are fair is both a matter of law and of the specific facts, meaning that there are multiple cases that have considered these factors. The list of four factors is not exhaustive, but are assistants in reaching the overall conclusion. The fourth factor, whether the use risks substituting for the copyright materials in the marketplace, is generally seen to be the most important. Courts need to apply judgment and consideration is deciding on fair use; as ever, assessing fairness requires thought and judgment.

As judge Chhabria explains in his summary judgement:

“What copyright law cares about, above all else, is preserving the incentive for human beings to create artistic and scientific works. Therefore, it is generally illegal to copy protected works without permission. And the doctrine of “fair use,” which provides a defense to certain claims of copyright infringement, typically doesn’t apply to copying that will significantly diminish the ability of copyright holders to make money from their works.”

He is as rude as a judge ever gets about a fellow judge who reached a recent decision on a fair use case in relation to Anthropic, another AI firm (Order on Fair Use at 28, Bartz v Anthropic PBC, No. 24-cv-5417 (N.D. Cal. June 23, 2025), Dkt. No. 231). That judge was convinced by the argument that training AI was no different from – and had no more impact on the market for copyright products – than training schoolchildren to write. Chhabria says: “when it comes to market effects, using books to teach children to write is not remotely like using books to create a product that a single individual could employ to generate countless competing works with a miniscule fraction of the time and creativity it would otherwise take. This inapt analogy is not a basis for blowing off the most important factor in the fair use analysis.”

And surprisingly given his overall ruling, Chhabria is very clear that AI companies are breaching copyright law and are damaging the commercial market for copyrighted works. He seems very sure that AI companies fail at the fourth factor in assessing fair use: “by training generative AI models with copyrighted works, companies are creating something that often will dramatically undermine the market for those works, and thus dramatically undermine the incentive for human beings to create things the old-fashioned way”.

Chhabria also notes a simple flaw in one of the AI companies’ arguments: that applying copyright law will stifle the development of this technology. He notes that any finding that this use of copyrighted materials isn’t fair use does not bar that use, it just requires that AI companies need to reach a commercial agreement with copyright holders to compensate them for the – unfair – use of their materials. As he points out, these businesses project that they will make billions, indeed trillions, of dollars from AI services, so should be able readily to afford such licensing. Indeed, the court saw evidence that Meta initially sought to licence book materials for training purposes, and considered spending up to $100 million on doing so. This never happened because book publishers do not hold rights to this use of book materials – like other novel uses, the rights rest with the authors – so there is no central point or points for such a negotiation. The fact that AI companies are seeking direct commercial benefit from their use of copyright materials makes their burden in demonstrating fair use much harder.

Despite Chhabria’s conclusions that seem to strongly favour the copyright-holders who brought the case, he nonetheless found against them. The copyright holders are 13 authors who argued that their works had been used in training Facebook’s Llama LLM models. In essence they failed in their claim because their lawyers focused their efforts and arguments in the wrong place. They made their arguments predominantly under the first three of the four factors in §107 of the Copyright Act, and failed in those. While the fourth factor – the effect of the use on the potential market for the copyrighted work – is generally seen as the most important, that is not an argument they made strongly. They simply did not argue (or were at best “half-hearted” in those arguments) that their works had been used as the basis for a tool which might flood the market with similar works, undermining the value of their copyright, nor did they provide evidence to support such an argument. This was “the potentially winning argument” according to Chhabria; the (weaker) points actually deployed in argument before the court did not succeed.

Chhabria was clear:

“this ruling does not stand for the proposition that Meta’s use of copyrighted materials to train its language models is lawful. It stands only for the proposition that these plaintiffs made the wrong arguments and failed to develop a record in support of the right one.”

It does seem ludicrous that the most valuable companies in the world should argue that it is fair for them to take stolen copies of books subject to copyright protection (the training materials were taken from so-called ‘shadow libraries’, of illegally scanned books) and make what they predict will be huge commercial profits as a direct result, while providing the copyright holders with no compensation. The fact that Meta explored licensing but found it too difficult and delaying helps support the case that this would be the right thing to do.

The Kadrey case reports one other specific element of the training of Llama models – that they are taught not to produce more than 50 words together that are repeated from any one source (even if provided with highly directive prompts to do so). The fact that this is a deliberate part of the training shows just how prone these technologies are just to leaning on what they have read. In a recent Financial Times interview, Professor Emily Bender, coiner of the term stochastic parrots and co-author of both the academic article that brought the term to prominence and of The AI Con, is quoted as calling LLMs “plagiarism machines”.

I have to admit that, as may be apparent from my recent reading habits, that I am an AI sceptic. I suspect that we will look back on this period with puzzlement, and wonder why we threw colossal amounts of computing power – and colossal levels of energy in our carbon-constrained world – at jobs that human brains are better at. AI is neither artificial nor intelligent: it isn’t artificial because it depends on human creativity in the training, and it also depends on significant, horrible, labour (typically cheap precarious labour in emerging economies) in cleansing the models of the filth that it produces because it has been trained on, among other things, the global sewer that is the Internet. It isn’t intelligent, it’s just reproducing others’ language patterns based on statistics, “haphazardly stitching together sequences of linguistic forms it has observed in its vast training data…without any reference to meaning” as the stochastic parrots paper put it. As Bender told the FT, we are “imagining a mind behind the text…the understanding is all on our end”. There will no doubt be jobs that AI technologies are useful for, but like any human tool it is tailored to its task, and not a general purpose vehicle for all activity. Currently we have a hammer and are making the mistake of seeing everything as a nail.

As a result, I suspect that much of the billions being deployed in AI currently will turn out to have been wasted. I should admit also that my view may be coloured by the fact that I entered the investment world exactly at the time of the dotcom bubble. While I avoided losing money in the dotcom bust, I also missed out on investment gains as that bubble inflated.

But this is a blog on fairness, not AI cynicism. The Kadrey decision did not conclude that Meta’s actions were fair, only that the copyright-holders had failed to deploy the arguments that might have shown how unfair the use of their materials was. This will clearly not be the last such case, and while the AI businesses will continue to deploy some of their investors’ millions into their defence, judge Chhabria’s legal conclusions suggest they will have a challenging time winning cases argued on the right basis.

Rather than finding that Meta’s use was fair, the Kadrey decision is highly suggestive that AI is not fair in its use and abuse of copyright materials. That feels right: fairness should always tend to rebalance power away from those with billions towards those of whom they take uncompensated advantage.

See also: Learning from the stochastic parrots
Amazon resurrects the worst of the industrial revolution
A just AI transition?

I am happy to confirm as ever that the Sense of Fairness blog is a purely personal endeavour

Kadrey v Meta, Case No. 23-cv-03417-VC, Summary Judgement 25 June 2025 (Docket Nos 482, 501)

The AI Con: How to Fight Big Tech’s Hype and Create the Future We Want, Emily Bender, Alex Hanna, Bodley Head, 2025

AI Snake Oil: What Artificial Intelligence Can Do, What it Can’t, and How to Tell the Difference, Arvind Narayanan, Sayash Kapoor, Princeton University Press, 2024

Meta seeks $29 billion from private credit giants to fund AI data centres, Eric Platt, Oliver Barnes, Hannah Murphy, Financial Times, 27 June 2025

Nvidia insiders cash out $1 trillion worth of shares, Michael Acton, Patrick Templeton-West, Financial Times, 29 June 2025

The Copyright Act, 17 USC

AI sceptic Emily Bender: ‘The emperor has no clothes’, George Hammond, Financial Times, 20 June 2025

On the Dangers of Stochastic Parrots: Can Language Models Be Too Big?, Emily Bender, Timnit Gebru, Angelina McMillan-Major, Shmargaret Shmitchell, Proceedings of FAccT 2021

An archaeology of equality

Reading an old book can sometimes feel like an archaeological dig – you find fragmented artefacts of how people used to think and have to try to piece together an understanding of their world, and their world view. Very often it serves to illuminate our own.

That’s definitely my sense while reading a book called Equality by an old socialist and economic historian, RH (Richard Henry) Tawney. My edition dates from 1964 but the original book was published in 1931, based on lectures given in 1929. This version enjoys a 1964 introduction by founding father of social policy Richard Titmuss, and no fewer than two prefaces by Tawney himself, one from the 1951 revised edition and one from the ‘substantially revised’ 1938 edition. Reading through these in this order is like uncovering historic layers of English inequality, and repeated aspirations for greater equality. What’s more, the first chapter of the book, The Religion of Inequality, starts by referring to a lecture by Matthew Arnold from I think 1878, to which it attributes the coining of that phrase.

I find it impossible to read these archaeological artefacts and not reflect on our own age. This blogpost aims simply to capture a few sentiments from each of these layers of history. Readers will no doubt be conscious of the great ruptures and attempts towards greater equality that provided the context for the writing of each of these layers of commentary, from the heights of the Cold War, the challenges of the Second World War and the creation of the welfare state that followed it, the Great Depression and the rise of fascism – and even, back around the 1870s, the first steps to broad enfranchisement (and while the right to vote did not then extend to women, that decade did see them permitted for the first time to retain their own property rather than simply surrender it on marriage).

Titmuss in his 1964 introduction:

“We…delude ourselves if we think we can equalize the social distribution of life chances by expanding educational opportunities while millions of children live in slums without baths, decent lavatories, leisure facilities, room to explore and the space to dream. Nor do we achieve with any permanency a fairer distribution of rewards and a society less sharply divided by class and status by simply narrowing the differences in cash earnings among men during certain limited periods of their lives.”

“Long years of economic depression, a civilians’ war, rationing and ‘fair shares for all’, so-called ‘penal rates’ of taxation and estate duty, and ‘The Welfare State’ have made little impression on the holdings of great fortunes…Wealth still bestows power, more power than income, though it is probably exercised differently and with more respect for public opinion than in the nineteenth century.”

“These consequences of technology in an age of abundance are more likely to increase than to decrease differentials in income and wealth if no major corrective policies are set to work…Without a major shift in values, an impoverishment in social living for some groups can only result from this new wave of industrialism.”

Tawney in his 1951 preface:

“Like earlier wars of religion, the credal conflicts of our day will find varying issues in different regions; but, if Europe survives, societies convinced that liberty and justice are equally indispensable to civilization will survive as part of her. The experience of a people which regards these great abstractions, not as antagonists, but as allies, and which has endeavoured, during six not too easy years, to serve the cause of both, is not barren of lessons which may profitably be pondered.”

And he quotes The Times from 1 July 1940:

“If we speak of democracy, we do not mean the democracy which maintains the right to vote, but forgets the right to live and work. If we speak of freedom, we do not mean a rugged individualism which excludes social organization and economic planning. If we speak of equality, we do not mean a political equality nullified by social and economic privilege. If we speak of economic reconstruction, we think less of maximum production…than of equitable distribution.”

Tawney in his 1938 preface:

“It is still sometimes suggested that what Professor Pigou, in his latest work, calls ‘the glaring inequalities of fortune and opportunity which deface our present civilization’ are beneficial, irremediable, or both together. Innocent laymen are disposed to believe that these monstrosities, though morally repulsive, are economically advantageous, and that, even were they not, the practical difficulties of abolishing them are too great to be overcome. Both opinions, it may be said with some confidence, are mere superstitions.”

“Institutions which enable a tiny class, amounting to less than two per cent of the population of Great Britain, to take year by year nearly one quarter of the nation’s annual output of wealth…are an economic liability of alarming dimensions. They involve…a perpetual misdirection of limited resources to the production or upkeep of costly futilities, when what the nation requires for its welfare is more and better food, more and better houses, more and better schools.”

“Today, when three-quarters or more of the nation leave less than £100 at death, and nearly two-thirds of the aggregate wealth is owned by about one per cent of it, inheritance is on the way to become little more than a device by which a small minority of rich men bequeath to their heirs a right to free quarters at the expense of their fellow-countrymen. The limitations imposed on that right during the past half-century were greeted, when first introduced, with the usual cries of alarm; and the alarm, as is not less usual, has been proved by experience to be mere hysteria. It is perfectly practicable, by extending those limitations and accelerating their application, to reduce the influence of inheritance – at present a strong poison – to negligible dimensions.”

“To make [democracy] a type of society requires an advance along two lines. It involves, in the first place, the resolute elimination of all forms of special privilege, which favour some groups and depress others, whether their source be differences of environment, of education, or of pecuniary income. It involves, in the second place, the conversion of economic power, now often an irresponsible tyrant, into the servant of society, working within clearly defined limits, and accountable for its action to a public authority.”

Tawney reports that Matthew Arnold said, in c1878:

“Arnold observed that in England inequality is almost a religion. He remarked on the incompatibility of that attitude with the spirit of humanity, and sense of the dignity of man as man, which are the marks of a truly civilized society. ‘On the one side, in fact, inequality harms by pampering; on the other by vulgarizing and depressing. A system founded on it is against nature, and, in the long run, breaks down.’”

As LP Hartley says in another old book, one that deliberately plays with memory and history, “The past is a foreign country; they do things differently there.” But often ‘they’ worried about the same challenges we do, and sought similar solutions.

I am happy to confirm as ever that the Sense of Fairness blog is a purely personal endeavour.

See also: Plague and planning: a long history of English unfairness
Unveiled: fleeced by power and business as usual

RH Tawney, Equality, 1964, Unwin

Arthur Pigou, Socialism versus Capitalism, 1937

LP Hartley, The Go-Between, 1953

An inequality in dignity, or the dignity deficit

It’s no criticism of the other presenters at a recent seminar on political populism hosted by King’s College London’s Policy Institute and the Fairness Foundation – it was a consistently energising discussion – that (for me at least) the most striking comment was this from Liam Byrne MP:

“There’s a real inequality of dignity [in the UK] today. People who were prepared to fight for the dignity of working people would go a long way [politically].”

Byrne chairs the House of Commons Business & Trade Select Committee and went on to describe the committee’s recent work. In particular, he has been struck by the strong public reaction to the Committee challenging companies that are seen to have been acting unfairly. He sees this as evidence of a real thirst for a body that seeks to inject more fairness into the relationship of business with society.

This blog is of course all for such an injection of fairness, but this post in particular is about the question Byrne raises about the inequality in dignity. What might we mean by the term, and how might we address that particular area of inequality, of unfairness?

Fortunately, there’s an academic who has dedicated her career to considering dignity, who is permitted to benefit from it, and how it can be reinforced. She is Michèle Lamont, Professor of Sociology and of African and African American Studies and the Robert I Goldman Professor of European Studies at Harvard University. A proud French Canadian, she feels a profound affinity with those at the periphery of societies. Her work largely focuses on the US, but she collaborates internationally and the lessons to be learned are global.

Lamont says at one point in her latest book, Seeing Others, that it is an “exploration of how we decide who matters”; that description really applies to most of her work. The phrase for me is both encouraging and profoundly unsettling at the same time. If we are to deliver the equality of dignity that Byrne is in effect seeking then we need all people to matter, not just those we decide are worthy of dignity. That is Lamont’s aspiration too, but she recognises the reality that we are far away from that point currently: it’s not by chance that the subtitle of Seeing Others is How to Redefine Worth in a Divided World.

Seeing Others is mostly focused on further-educated members of Gen Z and their efforts to recognise the worth of others. Byrne discusses their deliberately inclusive disclosure of pronouns, which has become such a target for some – opponents of the approach ironically seeing it as exclusionary, in contrast to its inclusive intentions. But earlier work was more directly concerned with the perspectives of the working class – in particular The Dignity of Working Men.

Lamont’s core finding in that book is that people create their own framework of dignity for their lives, and the camaraderie of working life together reinforces it. Morality lies at the heart of this sense of self, in the form of straight-talking honesty and a strong self-discipline – importantly, these are characteristics that they believe are lacking in many of their bosses and those of higher social status (they are only partly believers in American meritocracy). Lamont finds that “morality plays an extremely prominent role in workers’ descriptions of who they are and, more important, who they are not. It helps workers to maintain a sense of self-worth, to affirm their dignity independently of their relatively low social status, and to locate themselves above others.” Providing for and protecting their family lies at the core of this moral life, not least because it is “a realm of life that gives them intrinsic satisfaction and validation – which is crucial when work is not rewarding and offers limited opportunities”.

Byrne himself in his excellent recent book The Inequality of Wealth doesn’t much deal with these issues of dignity. Subtitled Why it matters and how to fix it, the book is much more trying to develop a prescription for addressing broader unfairness in our society. But there is one discussion that is very relevant. Tellingly in a chapter called The Cost of Affluence, Byrne discusses the work of psychologist Dacher Keltner, whose experiments explore the sense of fellow feeling and the willingness of strangers to support one another. He quotes Keltner as saying: “we’ve done several studies that look at how your wealth, education and prestige of your career or family predict generosity. And the results are consistent: poorer people assist other people more than wealthy people.” Here too is a source of dignity – and also an indication that working people are right to be cynical about the morality of those better off than themselves.

The Dignity of Working Men was published in 2000, but its interviews date back to 1992 and 1993. And some of the comments feel all of their 30-plus years of age. In particular, this comment from postal worker Steve Dupont, who argues with his immediate boss on a regular basis, feels like it comes from a very distant time: “This has gotten me in trouble but as I always say to [my foreman], ‘I can always find another job, I can’t always recoup my pride and my own dignity.’” There may have been an element of bravado then, but now not even the most bragging of working men would feel able to assert their ability always to find another job.

And that seems to be the core of the dignity deficit: when the ability to stand up for what is right, when self-discipline isn’t enough to avoid being restructured out of employment, then there is little basis for this traditional source of dignity and pride. Where it is no longer possible, even with hard work and discipline, to protect and provide for one’s family, dignity becomes less possible too.

One consequence of this dignity deficit is a nationalistic fervour. In The Dignity of Working Men, Lamont finds that “Being an American is one of the high-status signals that workers have access to”. She amplifies this finding in Seeing Others: populist political messages “extend to downwardly mobile people one of the few high-status identities available to them: their “winning” status as Americans”.

There’s a danger if this loss of dignity goes too far. A sense of humiliation is probably the opposite of the sense of dignity. And humiliation is a dangerous feeling. A recent excellent paper published by the wonderful people at Psyche discusses the impacts of humiliation at a national level – or at least the impacts of narratives of national humiliation. These are the fuel for conflict, finds author Raamy Majeed (a lecturer in philosophy at the University of Manchester). His title, Does national humiliation explain why wars break out?, expresses where the loss of dignity may end. “When citizens of a nation feel humiliated, they become more likely to support aggressive foreign policy initiatives.” Fairness (naturally!) can lean against this sense; Majeed reports on the work of philosopher Avishai Margalit, especially in The Decent Society, which “argues that a just society does not necessarily prevent its citizens from feeling humiliated but instead avoids creating humiliating conditions”.

Even short of conflict, there are direct physical consequences of the inequality in dignity. In Seeing Others, Lamont makes a clear link to the work of Anne Case and Angus Deaton on deaths of despair: “dignity affects quality of life just as much as material resources do”.

So we need to address the dignity deficit. A just society will help limit humiliation, but are there other prescriptions from Lamont’s work? She attempts exactly that in her conclusion to Seeing Others, a chapter entitled Strengthening our Capacity to Live Better Together, and she is exploring it in her current work, which she calls a study of the three Manchesters (Oldham, near Manchester in the UK; Greater Manchester, New Hampshire; and Tampere in Finland, nicknamed the Manchester of the North; all former centres of industry). At a talk this month at the London School of Economics, Lamont discussed both Seeing Others and this three Manchesters work, which is considering how working class 18-30 year olds seek and gain recognition – another term for dignity perhaps – and the role of place, history, politics, exclusion and inclusion in that.

It’s too early to have conclusions from the Manchesters work, but the conclusion to Seeing Others does provide some insight. Much of this is relatively vague, emphasising the need for shared visions, hopes and narratives – and at its most simple, shared existences, rather than living very segregated lives. There is a hint at emphasising the proud inclusivism in national stories, rather than the exclusive aspects of them. Lamont also calls for the middle-classes not to ‘opportunity hoard’ as much as they (I should say we) do. She gets more specific when she says (without acknowledging the element of division she is encouraging):

“The Democratic Party could make significant gains by regaining working-class voters with not only redistributive policies, but also with messages of solidarity and dignity, as an alternative to the Republican Party’s populist messages of division and blame. Redirecting working-class anger toward the one percent is more likely to sustain fruitful alliances than driving wedges between diverse categories of workers who have so much in common.”

In the absence of such efforts, and the absence of efforts to build a shared sense of community, it may be no surprise that a lack of fairness in dignity, echoing wider unfairness in society, is fuelling political and social tensions. Many people have the sense that the status status quo isn’t working for them, and are willing to see dramatic change as a result. Byrne is right, we need to be working to close the dignity deficit, to instil a greater fairness, an equality, in dignity.

I am happy to confirm as ever that the Sense of Fairness blog is a purely personal endeavour

See also: Deaton’s economics: fair criticism?
The pursuit of happiness
Meritocracy’s unfair
Trapped by expectations: the poverty of ambition
The centre cannot hold

The Return of Trump: is inequality behind the rise of the populist president?, King’s College London’s Policy Institute and the Fairness Foundation, 4 February 2025
The quoted passage is at around the 68th minute (but as I say it is all worth listening to!)

Seeing Others: How to Redefine Worth in a Divided World, Michèle Lamont, Allen Lane, 2023

The Dignity of Working Men: Morality and the Boundaries of Race, Class, and Immigration, Michèle Lamont, Harvard University Press, 2000

The Inequality of Wealth: Why it matters and how to fix it, Liam Byrne, Head of Zeus, 2024

Does national humiliation explain why wars break out?, Raamy Majeed, Psyche, 27 March 2025

The Decent Society, Avishai Margalit, Harvard University Press, 1996

Global dignity and seeing others, London School of Economics, 1 April 2025

Fair chance hires

AO Smith, a 150-year old family-dominated US company that manufactures water heaters and boilers, held its Annual General Meeting (AGM) last week. The Milwaukee-based company chose to hold the meeting at the National Association of Manufacturers in Washington DC.

One issue that faced the shareholders for consideration at the meeting was a resolution proposed by a fellow investor, NorthStar Asset Management. Headlined Eliminating Discrimination through Inclusive Hiring, the resolution was actually much more precisely focused than this slightly generic title indicates. The resolution called on AO Smith to consider afresh its hiring policies and practices to ensure that they appropriately consider people with records of having been arrested or imprisoned (technically, to meet the strictures of US regulation, the resolution is framed as seeking a report on these matters, but the intent is clear).

Such recruitments are known in the US, wonderfully, as ‘fair chance hires’.

One reason they are called fair chance hires is because of the racial discrepancies in imprisonment in the US. Blacks are around 14% of the US population but are 39% of its prison population (it isn’t clear how Hispanics are treated in the prison population data, but even if they were to be included in that ‘Black’ percentage, the over-representation is still 39% against around 30%). Similarly, Native Americans are around 1.5% of the overall population but 3% of those in prison. As NorthStar’s statement regarding its shareholder proposal states: “As people of color are disproportionately incarcerated, pursuing fair chance employment can also advance company diversity goals.”

The fund manager quotes AO Smith’s ambitions around diversity, as stated in previous annual reporting, and contrasts this with an apparent lack of progress on gender diversity as well as racial/ethnic diversity. It goes on to argue: “Shareholders believe that company value would be well-served by examining whether revisions to company practices related to recruiting formerly incarcerated individuals could decrease future risks related to discriminatory hiring.”

It’s the second year in a row that NorthStar has proposed such a resolution. According to its own website, in 2024 the proposal garnered 6.6% support. At a headline level, the voting results released this week seem to suggest that this year the asset manager was less successful, with around 5.5% of shareholders declining to back the company on the issue (this number aggregates those abstaining with those who supported the resolution outright). But because there are two classes of shares, and the Class A shares with 10 times the voting rights are almost entirely in the hands of the founding Smith family, the actual voting among shareholders other than the Smiths was more favourable: around 19.3% of the broader shareholder base appears to have backed the resolution (or at least to have not opposed the resolution). This is a notably high result given that many larger mainstream fund managers have reduced their support for shareholder resolutions in recent years. NorthStar proposed similar resolutions at three other companies last year, including Adobe; whether any others beyond the one at AO Smith make it to the ballot in 2025 remains to be seen.

The concept of ‘fair chance hires’ isn’t an international one. But there is a UK company with a proud record of hiring ex-offenders: another long-standing (160 years in its case) and eponymous family firm, Timpson. The retailer, famous for key-cutting and shoe repairs, proudly reports that 12% of its 4500 staff have a past criminal conviction. It provides training in prison, and has colleagues who are on Release on Temporary Licence (often referred to as day release), seeking to make the return to life outside prison more smooth. “We strongly believe in giving people a second chance in life,” Timpson asserts. This appears to work for the business: it reports that 75% of ex-offenders stay long-term with the business.

While the company has celebrated its sesquicentenary, the approach to recruiting offenders is much younger. It dates to 2002 and a visit to prison by CEO John Timpson. Timpson built a rapport with a guy called Matt, and hired him when Matt was released. But it’s now a significant part of the business: the corporate foundation spends over £1 million a year to support the employment of ex-offenders, and ‘Inclusion’ is one of five principles on which the business culture is built (the others are also wonderful words: Trust, Kindness, Loyalty, Generosity). The full principle reads: “We’re proud to employ people who find job hunting really tough, and 12% of our new recruits actually come from prison.”

There are huge positive externalities from this sort of activity: the value to the business of these loyal staff members is nothing to the value to society of successfully reintegrating those released from prison. The government’s own estimates put the cost of reoffending at over £18 billion, and the UK – like the US – has a poor record of supporting prisoners to train or to find any alternative way of making a living beyond crime.

Prison is only temporary for all but the worst offenders. We need to be better at rehabilitation, and we need to do more to reduce recidivism. We need more second chances, and more fair chance employers.

I am happy to confirm as ever that the Sense of Fairness blog is a purely personal endeavour

AO Smith Proxy Statement 2025

Inmate Race data, Federal Bureau of Prisons (data viewed as at 12 April 2025)

AO Smith AGM 2025 results

Timpson Foundation

Finding fairness in health insurance

‘Beyond the regulatory boundary, “fairness” can be seen as an opportunity to generate value to both the enterprise and its wider community. Fairness frameworks can be aligned with corporate and brand values as part of the broader enterprise strategic and risk management framework.’

While the starting point for a recent report on fairness in health insurance is the regulatory consumer duty recently put in place by the UK’s Financial Conduct Authority (FCA), it’s clear that the paper is more interested in business risk and opportunity than in mere regulation. As this blog has long found, there are remarkable numbers among the challenges that modern business faces that can best be viewed through the lens of fairness – and many opportunities that can be uncovered by deploying that lens.

From those smart people at Milliman, the report, Fairness in UK health insurance: Developing a framework and best practices in health insurance, covers the full range of relevant issues. These include: fairness in the delivery of consumer relations, especially the treatment of vulnerable customers; fairness in the application of new technologies, including AI and algorithms; and considerations of structural biases in healthcare.

While the report is narrowly focused on health insurance, it naturally considers many of the wider fairness issues that apply in the field of health. Foremost amongst this is the sterling work of the wonderful Sir Michael Marmot (perhaps most accessibly in The Health Gap). Marmot’s consideration of the social determinants of health is reflected in this brief segment of the report:

‘With greater focus on protected characteristics, there has been a move to greater use of “lifestyle” factors as personal “choices.”
‘Certainly, smoking is widely accepted as a choice. Possibly exercise; but are postcode, income, occupation, education, children? Whilst at some point they may have been “choices”, at later points in life they may be fixed rather than changeable (or controllable).’

Marmot shows that many of these issues are not choices at all, but are the outcomes of inequalities in wider society. In brief, poor housing, work, education, income, are all among the clearest determinants of poor future health outcomes. Few of these are chosen, particularly in economies where meritocracy is failing. While people in poverty are unlikely to be accessing health insurance, Marmot’s analysis raises questions about how fair it might be to consider some of these lifestyle issues in the pricing of such insurance.

The use of technology in relation to healthcare is also a significant feature of the Milliman work. In particular, the paper argues that: “Greater personalised medicine and healthcare are likely to mean that trust, privacy and fairness are increasingly necessary parts of ensuring good customer outcomes.” Further, it is not enough that fairness be done, it must be demonstrable that it has been delivered in practice: “Risk-based pricing and underwriting approaches should be auditable with clear accountability and robust governance of decision-making processes.” It is certainly not enough to assume that AI or algorithms will generate fairness – as this blog has found previously, these technologies can encode and replicate pre-existing unfairnesses.

But it is in dealing with the FCA’s consumer duty requirements that the paper breaks most fresh ground. Given that these requirements are still new, we have not yet seen best practices developed. The paper is therefore one of the earliest detailed expositions that I have seen of how it might bite in practice, and what it may require of business. The Milliman summary of the application of the duty to health insurance seems clear and wholly appropriate to me:

“For UK health insurers this combines providing fair customer treatment and clear information with products that genuinely meet their needs. Particular attention is required to product design and suitability, customer communication, customer support and providing “fair value” as well as systems to track performance and make adjustments. There is also a need to give special attention to vulnerable customers.”

The paper later considers some of the detailed best practices that seem likely to be required under the duty, including “Being transparent with customers, in particular with terms and conditions around the inclusion or exclusion of pre-existing medical conditions, any moratorium and exclusion of any specific types of treatments (often highly complex, severe conditions)” and “Being clear and signposting these policies using laymen terms in the policy documentation so there is no ambiguity.”

And there is a particular need for fairness in the area of health insurance, a particular need for care regarding consumer duty. As the paper point out: “Almost all customers making health claims are vulnerable to some extent, with particular efforts required to meet the needs of the most vulnerable.”

Reinsurance firm Pacific Life Re was also recently inspired by the advent of the FCA consumer duty regime to consider the uneven distribution of insurance products across different communities. But its response is a rather more bluntly commercial one: “Understanding where communities are underserved, both within your own business, and that of the industry, offers an opportunity.” This has echoes of the fortune at the bottom of the pyramid thinking that seems slightly to have slipped from much business thought. But as the work of Citizens Advice continues to show, accessibility and pricing of various insurance products are not evenly distributed across consumer groups.

The Milliman paper also draws a fascinating analogy to the independent governance committees that are in place in the pensions provided by insurance companies. These IGCs have responsibility for overseeing the customer experience and defending consumer interests, with particular attention to value for money. The paper suggests that there is something in this model that would be worthwhile perhaps extending to health insurance: “We consider that these efforts can be a best practice governance framework for the health insurance sector and help tap into consumer groups’ understanding of “fairness” and how their expectations evolve over time.” IGCs are consumer champions in pensions – do we need something similar for other products?

For some, the very availability of commercial health insurance in the UK is itself a symbol of unfairness. Where there is (at least in theory) universal provision through our National Health Service, health insurance can often be seen as jumping the queues which seem the main form of rationing of that provision (and which can make its universality seem theoretical). But we have to recognise the reality of the use of health insurance – not least as a standard employee benefit from companies keen that their staff stay healthy. It is certainly better that it is deployed fairly than not. The Milliman paper provides a pathfinder for that, as well as useful insights into the consumer duty more broadly.

See also: Some thoughts on Rethink: build back fairer
Meritocracy’s unfair
FCA unpacks fairness: the Consumer Duty
The Consumer Duty II – the FCA further unpacks fairness
The failures of algorithmic fairness

I am happy to confirm as ever that the Sense of Fairness blog is a purely personal endeavour

Fairness in UK health insurance: Developing a framework and best practices in health insurance, Milliman, February 2025

The Health Gap: the Challenge of an Unequal World, Sir Michael Marmot, Bloomsbury, 2015

Build Back Fairer: The Covid-19 Marmot Review, Michael Marmot, Jessica Allen, Peter Goldblatt, Eleanor Herd, Joana Morrison. The Health Foundation, December 2020

Beneath the Surface: Serving the Underserved, Pacific Life Re, 2024

Fortune at the Bottom of the Pyramid: Eradicating Poverty through Profits, CK Prahalad, Wharton School Publishing, 2004

Discriminatory pricing: Exploring the ‘ethnicity penalty’ in the insurance market, Citizens Advice, 2022

Motivational fairness

Readers (at least those that read the small print at the foot of every blogpost) will know that the Sense of Fairness blog is a purely personal endeavour. But naturally I am sometimes inspired to write things by events in my working life.

So it is this week, following a gathering on Tuesday hosted by fund manager Impax on the role of corporate culture in business performance. Naturally, the firm has a product to sell and wants to demonstrate its prowess in identifying share price performance drivers in what is still a surprisingly under-researched area.

Impax showed us striking charts showing stronger performance by companies with better culture, on the metrics that they have been able to garner from company reporting and more independent sources on employee satisfaction such as Glassdoor. Note that of course I am not making any investment recommendation.

Perhaps more striking than the performance statistics were the anecdotes from active fund manager Charles French, who relayed stories from the front line of asking CEOs about culture. As I too used to find when I asked my favourite “How are your people?” question, the range of responses to questions about culture tells you a great deal about the attitude and mindset of bosses. Some literally have nothing to say and do not know how to begin an answer; others become energised and demonstrate very clearly how much of a focus for them is inspiring their staff. You are left in no doubt which bosses – and so businesses – you would prefer to work for.

The event also featured a presentation and panel discussion on corporate culture. The panel featured a couple of my favourite people who have done great work on corporate culture, Tina Mavraki and Annabel Gillard. Most striking for this blog were a pair of word clouds within the initial, energising presentation from Jenny Segal, whose headline offer is ‘Building better workplace cultures through creativity and understanding motivation’.

She had asked a representative group of people what motivated them at work. Fairness appears with reasonable prominence, as do a series of other words that have concepts of fairness attaching to them:

As noted in a previous post, there are very different motivations for workers at companies which have a clear purpose and seek to inspire their staff. It’s unsurprising that unfairness at work is demotivating.

Jenny also asked people what makes a good boss. Again, fairness clearly matters:

Another striking comment from the panel came from Christine Cappabianca, one of Impax’s quant team, who leads their work uncovering data on culture. Clearly the reporting dynamic around diversity, equity and inclusion factors – one of the areas she has been mining for insight – varies around the world and is shifting notably at the moment. One of the shifts that she expects to happen as diversity is downplayed is that the language of fairness will see more use, as it’s a much less divisive way of capturing the intent of these programmes. That fits with the the most forward-thinking research in this space.

Fairness matters, viscerally, to people. It’s not surprising that its presence fires us up at work and that its absence demotivates. The best managers know this viscerally too.

See also: Operating on purpose – hampered by inequality
Diversity and fairness
People matter, but not like that
Better ways of showing how people matter

I am happy to confirm as ever that the Sense of Fairness blog is a purely personal endeavour

Jenny Segal, Speaking with Images

When the computer says no

For subscribers to the Financial Times, there’s a great little piece (dated yesterday online so I assume in today’s print edition) on the consumer experience of algorithmic fairness and unfairness by the ever-thoughtful and thought-provoking Sarah O’Connor.

O’Connor discusses the black box experience of technology decision-making for customers – particularly in terms of being barred from access to their own accounts – which isn’t improved, or at least isn’t made any less opaque, by the application of the required human overlay if the consumer complains.

As she indicates, it’s rarely clear how fairness fits into this process.

See also: The failures of algorithmic fairness
But is it FAIR?

What to do when the computer says no, Sarah O’Connor, FInancial Times, 5 February 2025

A just AI transition?

Even given my cynicism regarding the current hype about artificial intelligence (AI)*, I have to admit that it’s very clear this new technology will transform the world of work. The societal excitement about Chat GPT and other large language models (LLMs) has been matched by corporate excitement. Companies across the world are experimenting broadly, many of them keen to deploy this as a cost-saving tool.

Of course, as with every technology shift, cost-saving comes in the form of replacing people with machinery. Efficiency means being able to do things more quickly with less human intervention. If the current experiments with AI deliver, perhaps companies will redeploy those humans to other work. More likely they will remove those people, and their costs, from their business.

That’s how business, and economies as a whole, operate: moving to more efficient ways of delivering what customers and society want, to enable higher profits or simply to enable companies to compete with rivals which are also trying to reduce their costs. On the whole, this is good for economies too as more efficiency allows national resources to the deployed to where they deliver most value.

But that redeployment takes time, and technology transitions are painful processes, for individuals and for society. Discussions of efficiency, cost savings or redeploying resources divorce us from the very real human and emotional impacts of these changes, which are of individuals losing their jobs and livelihoods, and subsequently struggling for money and self-esteem. Even where a technological shift does create new opportunities (which has been the case with every such transition previously and so seems likely once again), that takes time – time in which individuals feel unanchored, unvalued, and perhaps reach an age where further employment is unavailable to them. That can serve to destabilise society further. We shouldn’t let the economics blind us to the personal and emotional.

There is much talk in sustainable investment circles of the need for a just transition (sometimes a fair and just transition) to a decarbonised world, ensuring that care is taken to protect and support those individuals whose jobs are impacted by the dramatic shift to economic activity that must come as the world finally faces up to the realities of climate change. There is also likely to need to be a fair and just transition to an AI-enabled world.

Recent work from the International Monetary Fund (IMF) begins to open a window on this challenge, building on the sentiment of managing director Kristalina Georgieva in a blog from a year ago called AI Will Transform the Global Economy. Let’s Make Sure It Benefits Humanity. The organisation is developing approaches to consider which jobs – and which economies overall – will be impacted by the advent of AI.

Most recently, IMF staff considered impacts in Asia. A blog this month, How Artificial Intelligence Will Affect Asia’s Economies, tries to map this out in more detail, based on analysis of the breakdown of jobs in each economy. The blog reflects a deeper discussion within the analytical note attached to the Fund’s most recent Asia and Pacific Regional Economic Outlook. This analysis suggests a greater exposure to AI impacts in the region in what IMF jargon terms advanced economies, while emerging economies are likely to face lower impacts. However, they also seek to assess whether those impacts will be positive or negative for jobs: around half the impacts in advanced economies are where AI is complementary to the job, potentially driving economic benefits; meanwhile in emerging economies the majority of impacts are where there is much more likelihood of workers finding their jobs replaced. The economists hedge this analysis with language such as ‘low complementarity’ and ‘displacement’ of work, but the thinking is clear.

The language was more blunt in some earlier less detailed work, suggesting AI “could endanger 33 percent of jobs in advanced economies, 24 percent in emerging economies, and 18 percent in low-income countries”. Those conclusions look more worrying than the most recent analysis, but even the lower levels of estimated disruption are very significant.

According to the most recent analysis, there is also a gendered split in the potential impacts, again potentially exacerbating existing inequalities:

The blog reads:

“The concentration of such [complementary] jobs in Asia’s advanced economies could worsen inequality between countries over time. While about 40 percent of jobs in Singapore are rated as highly complementary to AI, the share is just 3 percent in Laos.
“AI could also increase inequality within countries. Most workers at risk of displacement in the Asia-Pacific region work in service, sales, and clerical support roles. Meanwhile, workers who are more likely to benefit from AI typically work in managerial, professional, and technician roles that already tend to be among the better paid professions.”

Georgieva was clear about the risks: “In most scenarios, AI will likely worsen overall inequality, a troubling trend that policymakers must proactively address to prevent the technology from further stoking social tensions.”

The IMF economists are increasingly clear about what needs to be done about these inequality risks. According to them, a just transition will require:

  • Effective social security nets
  • Reskilling programmes for affected workers
  • Education and training to enable effective application of the AI opportunity, particularly for those economies where AI is currently seen to have low impacts – so that the positive benefits can be enjoyed
  • Regulation to promote ethical AI use and data protection

The IMF, in its AI Preparedness Index, suggests that there is a broad spread in the readiness of global economies for this coming wave of technological disruption:

Again, as things stand it seems that the greatest likelihood is for AI to exacerbate existing inequalities. Preparing for this major economic shift will demand fresh policies and investment. These are significant challenges for world economies, for companies as they embed AI into their workflows, and for global investors, to rise to.

See also: Learning from the stochastic parrots
Amazon resurrects worst of the industrial revolution
Just transitions and gilets jaunes

*I have my doubts about each of the A and the I in artificial intelligence: calling an activity ‘artificial’ when it depends on the horrific grinding work of many people to scrub its results seems inaccurate; and calling it ‘intelligent’ when it is simply a logic puzzle about the likelihood of putting one word after another – the stochastic parrots as described in that prescient article (I particularly like the analogy of Emily Bender, one of the authors of that article and a professor at the University of Washington, that AI is reproducing text in the way people might if they had unrestricted access to the National Library of Thailand but without pictures or dictionaries to enable them actually to understand or translate the language). A more recent article touching on these matters is the excellent Ask me Anything! How ChatGPT got Hyped into Being, which among other things states this fundamental truth: “LLMs are not designed to represent the world. There is no understanding by the artificial agent (chatbot) of the meaning of the output it creates. It is us humans who create that meaning.” More directly, the word soups that I have been presented with by colleagues show very clearly the limits of the technology in doing anything without clear instruction and precise pre-existing materials to work with.

See also: What’s a fair use?

I am happy for confirm as ever that the Sense of Fairness blog is a purely personal endeavour.

AI Will Transform the Global Economy. Let’s Make Sure It Benefits Humanity, Kristalina Georgieva, IMF, 14 January 2024

How Artificial Intelligence Will Affect Asia’s Economies, Tristan Hennig, Shujaat Khan, IMF, 5 January 2025

Asia and Pacific Regional Economic Outlook, IMF, November 2024

Thought experiment in the National Library of Thailand, Emily Bender, Medium, 25 May 2023

Ask me Anything! How ChatGPT got Hyped into Being, Jascha Bareis, 2024

Data and inequality

Long-term readers will know that I have my doubts about the value of the precise measurement of inequality known as the Gini coefficient. It’s one of the specific examples of my general cynicism about overly specific measurements. Things are usually a good deal more complicated.

Nonetheless it is fascinating to read John Burn-Murdoch’s piece for the Financial Times this weekend, Inequality hasn’t risen. Here’s why it feels like it has, which is grounded wholly in the Gini coefficient. Burn-Murdoch is the FT’s Mr Statistics, and he is always readable and interesting, so I’ll forgive the obsession with the use of single datapoints that will always be flawed if viewed in isolation (and I’ll acknowledge also that he recognises the limits of Gini: “Aggregate inequality statistics certainly have their place, but they can mask important nuances,” he writes).

The core of Burn-Murdoch’s article is the data shown in these charts:

He notes the increased attention to inequality over the past decade, even though the Gini numbers suggest it is in fact falling in both the UK and US, and he attributes this to a squeezing of the middle class between improved treatment of the poorest paid (which appears to be the driver of more than the total drop in the Gini measurement) and an increased stretching of the advantages of those best off in our society (which has increased inequality, but less than the reduction driven by the improvements for those least well off). While it’s known that the minimum wage in the UK and its bolstering over time has helped those least well off here, it is more surprising to find that some similar improvements have also been experienced by the poorest in the US also, despite the notorious stagnation of the national minimum wage there. This squeezing effect is reflected in the title given to the article in the paper copy of the newspaper: Why the middle class is right to feel squeezed.

This blog would naturally suggest that one reason why there is increased noise about inequality now, despite the falls in the Gini coefficient, is that the problem as humans see it is unfairness, not inequality, and the bluntness of Gini fails to capture the richness of human experience. In particular, it’s hard to believe that the improvement in the incomes of the poorest is genuinely felt to be an improvement in their life experience – perhaps especially as they have experienced greater inflation than wider society over recent times. The moves in Gini may be masking insight as much as they are revealing.

Burn-Murdoch is clearly right when he highlights the reductions in sense of opportunity available to many in society – opportunity both for themselves and for their children. But, for this blog at least, these are questions of fairness, not of inequality (measured by Gini or in some other way).

See also: Fairness – the human lens for addressing our current challenges
What gets measured gets managed – unfortunately
The centre cannot hold
Inflation’s two separate world’s (at least)

I am happy to confirm as ever that the Sense of Fairness blog is a purely personal endeavour.

Inequality hasn’t risen. Here’s why it feels like it has, John Burn-Murdoch, Financial Times, 4 January 2025