Friday’s Endnotes – 11/03/23

By , November 03, 2023.

Judge pares down artists’ AI copyright lawsuit against Midjourney, Stability AI — “U.S. District Judge William Orrick dismissed some claims from the proposed class action brought by Sarah Andersen, Kelly McKernan and Karla Ortiz, including all of the allegations against Midjourney and DeviantArt. The judge said the artists could file an amended complaint against the two companies, whose systems utilize Stability’s Stable Diffusion text-to-image technology. Orrick also dismissed McKernan and Ortiz’s copyright infringement claims entirely. The judge allowed Andersen to continue pursuing her key claim that Stability’s alleged use of her work to train Stable Diffusion infringed her copyrights.”

AI Chatbots are scraping news reporting and copyrighted content, News Media Alliance says — “In the published white paper, the trade group also rejected arguments that A.I. bots have simply ‘learned’ facts by reading various sets of data, like a human being would. The group said ‘it is inaccurate’ to form such a conclusion ‘because models retain the expressions of facts that are contained in works in their copied training materials (and which copyright protects) without ever absorbing any underlying concepts.'”

Choreography Copyright Gets Its Due in the Ninth Circuit — “On Wednesday, the Ninth Circuit Court of Appeals revived a copyright lawsuit brought by choreographer Kyle Hanagami (Blackpink, Jennifer Lopez, Britney Spears) against Fortnite publisher Epic Games. Hanagami first sued Epic in March 2022 over the Fortnite emote ‘It’s Complicated,’ which Hanagami claims is an unauthorized copy of the choreography he published for the 2017 song ‘How Long’ by Charlie Puth.”

Why Overbroad State Library Ebook Licensing Bills Are Unconstitutional — “This policy memo explains how federal copyright law supersedes and limits state laws that regulate the licensing of copyrighted works. While states can validly target certain abusive conduct related to the manner in which copyright licenses are negotiated, federal law is clear that states cannot cross the line by dictating the terms of such licenses when they directly implicate the exclusive rights secured by the Copyright Act.”

Entry into force of the new Copyright Law in Myanmar — “Myanmar’s Copyright Law … which was enacted on May 24, 2019, has come into effect on October 31, 2023 … thereby repealing the Myanmar Copyright Act of 1914…. Similar to copyright laws in many other countries, copyright protection in Myanmar is now granted automatically upon the creation of a work. As a result, registering copyrights in Myanmar is considered optional but recommended for enforcement purposes.”

Friday’s Endnotes – 10/13/23

By , October 13, 2023.

Shared fate: Protecting customers with generative AI indemnification — Google wants to be master of its own destiny. In a blog post this week, the company identified seven of its AI-based products for which it will indemnify a user if they get sued because Google’s training data used copyrighted material or if they get sued over the output they generate.

Thaler Appeals D.C. Court Decision Denying Copyright for AI-Generated Art — The first U.S. court decision on copyrightability of AI-generated art is heading to the circuit courts.

Photographer Says Miles Davis Tattoo is Not Fair Use After Andy Warhol Ruling — “A photographer, who is suing celebrity tattoo artist Kat Von D for using his photo of jazz musician Miles Davis as a tattoo for a client, has claimed that the inking is not a fair use of his work — after the U.S. Supreme Court’s ruling on The Andy Warhol Foundation v. Lynn Goldsmith case.”

Capitol Records fights Vimeo copyright protections in Second Circuit — “A dozen record labels asked the Second Circuit Court of Appeals on Thursday to hold Vimeo accountable for copyright infringement, saying the company ignored red flags when employees encountered recognizable recordings on the video-hosting website.”

Game of Thrones AI Completed Books Removed After Being Noted In George RR Martin Lawsuit — “The fan who released finished versions of the Game of Thrones books using AI has removed them after being named in George R.R. Martin’s lawsuit. Recently, Martin and several other authors teamed up to sue ChatGPT’s parent company OpenAI, alleging ‘mass-scale copyright infringement.’ The lawsuit specifically cited the fan who famously used ChatGPT to write finished versions of The Winds of Winter and A Dream of Spring, the final two volumes in Martin’s A Song of Ice and Fire series.”

Friday’s Endnotes – 09/29/23

By , September 29, 2023.

Oversight of the U.S. Copyright Office — On Wednesday, the House Intellectual Property Subcommittee held an oversight hearing on the U.S. Copyright Office. A video of the hearing is available at the link, featuring Register Shira Perlmutter testifying on artificial intelligence, music licensing, Copyright Office modernization, and more. Read Register Perlmutter’s written testimony here.

Of Artificial Intelligence and Untidy Facts: Federal District Court Denies Summary Judgment in AI Copyright Case — Perhaps the first US court decision on the merits to address copyright and AI training, but this one largely leaves the big questions for another day. Read the expert analysis of the decision here, then check out the decision itself here.

Fair Imitation or Infringement? Analyzing the Humans of Bombay Copyright Case — Analysis of a recently filed lawsuit in India by storytelling platform Humans of Bombay against competitor People of India, covering core concepts of India’s copyright law, including fair dealing.

Hollywood’s AI Compromise: Writers Get Protection, Studios Aim for Copyright — Hollywood Reporter’s Winston Cho looks at the AI related terms of the tentative deal reached yesterday between the AMPTP, representing film and TV producers, and the Writers Guild of America. Writes Cho, “Included in the agreement were provisions placing guardrails around the use of generative AI that not only protect writers but also the studios, which are signaling they plan to pursue copyrights of works created in part by AI tools. The deal doesn’t bar the use of AI but restricts how it can be credited and utilized.”

Music publishers double down on copyright claims against X — “If the case gets to court, the dispute will likely focus on the good old copyright safe harbour. X can avoid liability for copyright infringing content uploaded by its users providing it has takedown system in place to deal with infringement and infringers when made aware of such things by copyright owners. X does have a takedown system, but the publishers argue that it is insufficient for the social media company to avoid liability via the safe harbour in the US Digital Millennium Copyright Act. This means that X would have to demonstrate how its takedown system is, in fact, super duper.”

Friday’s Endnotes – 09/22/23

By , September 22, 2023.

Have We Misunderstood Copyright’s Consequences? — A very intriguing new paper from economist Stan Liebowitz. From the abstract: “This paper uses an unusually rich 21st century data set to compare two sets of vintage bestsellers from the early 20th century that, by a circuitous path of copyright law alterations, came to have different copyright treatments. The most striking result is that, on average, copyrighted vintage bestsellers sell almost four times as many copies as public domain vintage bestsellers and this result holds throughout the sales distribution. This result conflicts with the expectation that copyright would restrict sales by allowing the exercise of monopoly power, and instead points to factors such as post-creation investment by publishers as being much more important than previously recognized.”

The Authors Guild, John Grisham, Jodi Picoult, David Baldacci, George R.R. Martin, and 13 Other Authors File Class-Action Suit Against OpenAI — This was the big copyright news driving this week. Check out the Authors Guild page here for more information about the litigation, statements from the plaintiffs and counsel, and a link to the complaint itself.

Advertising on Pirate Sites Outlawed in Ukraine Under New Law — “Under a new law set to be enforced early October, placing advertising on pirate sites will be outlawed in Ukraine. Signed earlier this year by President Volodymyr Zelenskyy, the legislation targets sites that appear on the World Intellectual Property Organization’s WIPO Alert blacklist for systematically ignoring takedown demands.”

Internet TV services under the scrutiny of EU copyright law: CJEU ruling in Ocilion — Discussion of a CJEU case from July concerning an interesting (though technical) copyright issue involving a commercial IPTV service that provides, among other features, cloud recording and storage of TV programs. US copyright fans may see shades of Cablevision and Fox Broadcasting v Dish Network here.

Friday’s Endnotes – 09/15/23

By , September 15, 2023.

Publishers’ Lawsuit Accuses Libgen of “Staggering” Copyright Infringement — “Cengage, Macmillan Learning, McGraw Hill and Pearson Education have filed a copyright infringement lawsuit against Library Genesis, a major ‘shadow library’ also known as Libgen. The publishers can’t currently identify the site’s operators but believe they are likely based overseas. Citing ‘staggering’ levels of infringement, the companies are seeking damages and an order that will allow them to seize the site’s domains or put them out of action.”

BREAKING: BGH asks CJEU for clarification of ‘pastiche’ — At IPKat, Mirko Brüß relays the latest news in the 24 year dispute brought by electronic artist Kraftwerk against hip-hop producer Moses Pelham over Pelham’s unauthorized use of a Kraftwerk sample. As Brüß explains, the CJEU is asked to weigh in on the legality of the sample after June 7, 2021, due to an intervening change in German law.

More Authors Sue OpenAI for Copyright Infringement — This week saw a new lawsuit filed alleging copyright infringement by AI developers. The suit is being brought by authors Michael Chabon, David Henry Hwang, Matthew Klam, Rachel Louise Snyder, and Ayelet Waldman, and alleges in part that the datasets used by OpenAI to train ChatGPT are infringing.

Time To Copyright Indigenous Designs? A Mexican Fashion Spat — A recent dispute involving fashion designer Caroline Herrera and her use of embroidery and textile designs from several indigenous communities in Mexico shines a light on debates to amend the country’s federal copyright law to protect the country’s indigenous arts.

U.S. Chamber Joins Innovators, Creators, Thought Leaders, Former Government Officials, Trade Associations, and Academics to Release New Intellectual Property Principles — “‘Activists have dismissed the importance of intellectual property policy and bad actors have stolen IP for monetary and competitive gain. This injures inventors and creators, damages emerging industries and businesses, and harms American consumers and workers. It is time to prioritize IP protections. A failure to do so will endanger future investment in innovation,’ said Patrick Kilbride, Senior Vice President of the Global Innovation Policy Center at the U.S. Chamber of Commerce.”

Friday’s Endnotes – 09/08/23

By , September 08, 2023.

Do Copyright Professors Pay Attention to Economists? How Empirical Evidence on Copyright Piracy Appears (or Not) in Law Literature — Highly recommended new draft from Justin Hughes and Michael D. Smith which explores the question why, given that the vast majority of peer-reviewed empirical studies demonstrate that piracy harms authorized sales of copyrighted works, the majority of citations in the law literature are to the minority of studies that show little or no harm.

Digitizing Over 9 Million Historical Record Pages and Counting — “In 2021, the Copyright Office began digitizing the Historical Record Books Collection’s more than 26,000 volumes—over 26,000,000 pages—making it one of the most extensive digitization projects at the Library of Congress. … The Office published the first 500 digitized record books online in February 2022 and now has digitized more than 9 million pages of registration applications.”

Artist Who Duped Art Contest With AI Image Has Copyright Application Rejected — PetaPixel’s Matt Growcoot reports on this week’s ruling by the US Copyright Office’s Review Board which rejected an artist’s request to reconsider the Office’s refusal to register the copyright in a work generated using Midjourney.

It’s a Taking: Copyright Deposit Requirement Violates Fifth Amendment — “Addressing the issue for the first time, the US Court of Appeals for the District of Columbia found that the Copyright Act of 1976’s requirement to deposit two copies of a work with the Library of Congress within three months of the work’s publication was unconstitutional under the Fifth Amendment’s Takings Clause.”

Microsoft says it will take the heat if Copilot AI commercial users get sued — “In a blog post about an initiative called the Copilot Copyright Commitment, Microsoft chief legal officer Brad Smith said the company will take the heat for any potential legal risks as more copyright holders question how AI companies handle protected works. Microsoft said the policy is an extension of its overall AI customer commitments, announced earlier this year.”

Friday’s Endnotes – 08/11/23

By , August 11, 2023.

This is the last endnotes of the summer. See you all in September!

State Attempts to Sink Blackbeard Infringement Case by “Deep Sixing” the Law They Passed to Claim the Copyrights — Stephen Carlisle takes a close look at the latest developments in the long-running litigation involving videographer Rick Allen and the state of North Carolina, which has already been to the Supreme Court.

Houdini and the Magic of Copyright — Marilyn Creswell, Librarian-in-Residence at the U.S. Copyright Office, tells the story of three “playlets” that legendary magician Harry Houdini registered with the Office.

AI Trained on AI Images Produces Terrible Results, Study Finds — “If the research paper is correct, then it means that AI will not be able to develop an endless fountain of data. Instead of relying on its own output, AI will still need real, high-quality images to keep progressing. It means that generative AI will need photographers. With picture agencies and photographers now very much alive to the fact that their intellectual property assets have been used en-masse to train AI image generators, this technological quirk may force AI companies to license the training data.”

Before Generative AI, Big Tech Taught Artists to Abdicate Copyright Rights — “In the copyright world, platform operators have consistently circumvented their obligations under the DMCA with shrugging statements like We can’t police the internet, alluding to staggering volume while conjuring an association with authoritarianism. Now, the circumstances are different. It is a near certainty that every creative work made has been, or will be, ingested into one or more AI training models, and unless the courts find this to be an act of mass piracy and order disgorgement of the datasets, creators may have to accept that their work is being turned into pink slime.”

Prosecraft has infuriated authors by using their books without consent – but what does copyright law say? — “By Smith’s own admission, Prosecraft uses more than 25,000 books. None of this would be possible without a “shadow library”: the Achilles’ heel of AI technologies.A new term in the language of copyright law, “shadow library” has evolved from a growing body of legal disputes between businesses based on artificial intelligence and published human authors.”

Friday’s Endnotes – 08/04/23

By , August 04, 2023.

An AI Scraping Tool Is Overwhelming Websites With Traffic — “The people at the head of the new crop of AI companies believe that their technology could replace 80 percent of  jobs in the U.S. and pose ‘massive risks’ to society. We should be skeptical of these claims, but it’s also worth noting that the people building tools they consider to be so disruptive are doing so without ever asking the internet users whose efforts are powering AI if they wish to fuel that technology.”

AI ‘Authorship’ Muddies the Waters of Copyright Law Claims — Copyright expert Zvi Rosen asks, “Is it infringement to use copyrighted works to train AI? Does an AI-created work even have an author, as the Constitution requires for copyright protection? Must an author be a person, and what if the author uses a machine to create?”

Agence France-Presse pursues copyright case against X, formerly known as Twitter — “The news agency announced the legal action in a statement. It said it is seeking payment under European Union intellectual property rules that cover ‘neighboring rights,’ which allow news outlets and publishers to seek payment from digital platforms for the sharing of their work.”

Court Rejects Appeals of Copyright Royalty Board Decision on 2021-2025 Webcasting Royalties — “Three parties appealed the CRB’s June 2021 decision setting the royalties to be paid by webcasters for 2021-2025 (the CRB sets rates in 5-year increments). The NAB and the NRB-NMLC (i.e., the National Religious Broadcasters’ noncommercial music licensing committee) argued that the royalties set for their members should be lower than the rates set by the CRB. SoundExchange, on the other hand, argued that they should be higher.”

Friday’s Endnotes – 07/28/23

By , July 28, 2023.

Scuttling Blackbeard’s Law — Plagiarism Today’s Jonathan Bailey notes a recent law enacted in North Carolina that repealed the 2015 law that effectively placed any audiovisual footage of underwater shipwrecks into the public domain. The law arose out of a dispute between the state and photographer Rick Allen which ultimately led to the Supreme Court, which issued a March 2020 decision addressing copyright infringement and state sovereign immunity. The litigation continues; following the Supreme Court decision, the district court allowed Allen to amend his original complaint.

The Pen Is Mightier Than The Large Language Model — “AI regulation that protects America’s creatives would also preserve the quality of its journalism, poetry, television shows, movies, stories and books that the U.S. is known and admired for around the world. Without our written culture, the ground we stand on as an exemplar of speech that is not only free, but also high quality, will substantially weaken.”

Off the Charts: Derivative Work Copyright Registers All Material in Derivative Work — “In a matter of first impression, the US Court of Appeals for the Ninth Circuit … agreed with other circuits that by registering a derivative work, an author registers all the material included in the derivative work, including any unregistered original works.”

YouTube Rippers’ Appeal of RIAA’s $83 Million Piracy Win Moves Forward — “While Mr. Kurbanov previously walked away from the U.S. court battle, he may choose to keep on fighting. In a new filing submitted yesterday, a challenge against the piracy liability ruling and damages award was docketed at the Court of Appeals for the Fourth Circuit. The appeal doesn’t come as a complete surprise. More than a year ago, Kurbanov’s legal team already signaled their intention to challenge the verdict. A notice of appeal was filed in March 2022, but it took more than a year before the case was formally docketed.”

The Impact of the Supreme Court’s Goldsmith Decision on Copyright Enforcement Against AI Tools — “The U.S. Supreme Court’s opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith sent ripples through the legal and artistic communities. Months later, legal scholars and art journalists continue to debate whether the decision opens the door for federal courts to act as ‘art critics.’ Many, however, downplay how the Supreme Court’s decision impacts the ways in which copyright owners may enforce their rights against generative AI tools.”

Friday’s Endnotes – 07/21/23

By , July 21, 2023.

Judge lets art trio take another crack at suing AI devs over copyright — “The artists, represented by attorney Matthew Butterick and the Joseph Saveri Law Firm, argued that each image generated by AI software was created by combining relevant images scraped from its training dataset. And since those original works are protected by copyright, they argued, all AI-generated knock-offs infringe upon the artists’ rights.”

Instagram dodges photographers’ copyright claims on appeal – but case likely continues — “A class of photographers whose Instagram photos were embedded by other websites failed on Monday to convince a three-judge panel at the 9th U.S. Circuit Court of Appeals to set aside controversial precedent in order to hold Instagram liable for copyright infringement. But the panel also said that the photographers had raised ‘serious and well argued’ policy concerns about copyright holders’ ability to control and profit from their work. If lead plaintiffs Alexis Hunley and Matthew Scott Brauer want to challenge the precedent that controlled the outcome of this case, the panel said, they should petition the 9th Circuit for an en banc rehearing.”

Thousands of authors demand payment from AI companies for use of copyrighted works — “The list of more than 8,000 authors includes some of the world’s most celebrated writers, including Margaret Atwood, Dan Brown, Michael Chabon, Jonathan Franzen, James Patterson, Jodi Picoult and Philip Pullman, among others. In an open letter they signed, posted by the Authors Guild Tuesday, the writers accused AI companies of unfairly profiting from their work.”

House IP Subcommittee Mulls Copyright and Design Patent Revisions Amid Right-to-Repair Debate — “The sole pro-IP perspective on the witness panel was Devlin Hartline, Legal Fellow at the Hudson Institute’s Forum for Intellectual Property [and previous Copyhype contributor]. Hartline said there simply isn’t a right to repair in existing law, and that it is IP rights that ultimately protect the public good. ‘The right-to-repair movement isn’t based on a preexisting right; it’s instead asking lawmakers to create a new right at the expense of the existing rights of IP owners,’ Hartline explained.”

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